Webber v. Herkimer & M. St. R. Co.
| Decision Date | 17 April 1888 |
| Citation | 16 N.E. 358,109 N.Y. 311 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | WEBBER v. HERKIMER & M. ST. R. CO. |
OPINION TEXT STARTS HERE
Appeal from general term, supreme court, Fourth department.
Action to recover for personal injuries by Rodney C. Webber against the Herkimer & Mohawk Street-Railroad Company. Judgment for defendant, and plaintiff appeals.
A. B. Steele, for appellant.
Samuel Earl, for respondent.
The plaintiff's complaint, in substance, alleged the making of an agreement between himself and the defendant, a street-railroad company operating as common carriers of passengers between the villages of Herkimer and Mohawk, in this state, by which on June 23, 1879, the defendant, having received him into its car, for a certain compensation then paid by him, undertook and agreed with him to transport him, with care, diligence, and safety to his person, from Herkimer to Mohawk, and that its cars, road, and appurtenances thereto, were safe, suitable, and proper for the accomplishment of that undertaking. It further alleged that the defendant omitted and neglected to perform its said undertaking, and violated the same, in the respect that its car was so constructed that, while in motion, a passenger could not pass from one end to another without stepping outside on a side platform; and that, while on his journey, and in the night-time, the conductor ordered plaintiff to move from the rear end of the car to the front end. While complying with this direction, and in passing along said outside platform, plaintiff was struck by a telegraph pole, crushed against, and thrown from the car into a ditch, and was greatly injured. It alleged that the defendant's servants were well aware that at a certain part of the road the telegraph poles were so near to the track as to make it dangerous for any person to be on the outside platform of the car while passing that point; and that, in ordering plaintiff to move, defendant's servants neglected to warn him of the close proximity of the telegraph poles; and that he was injured without fault on his part. The complaint then alleged the nature and extent of his injuries, and the amount of damages sustained. The answer, among other defenses, set forth that this action was brought to recover damages for a personal injury resulting from negligence, and that the cause of action did not accrue within three years next before the commencement of the action. When the case came on for trial, it was conceded that the action was commenced on the 6th day of March, 1883, and the court held that the statutory defense pleaded by the answer was applicable to the case, and ordered a verdict for defendant. The plaintiff excepted to this ruling and order, and also to the refusal of requests to be allowed to go to the jury.
The sole question for our review is the correctness of the judge's ruling upon the application of the statute of limitations set up in defendant's answer as a bar to the action. Plaintiff's counsel contends that the cause of action arises upon a ‘contract obligation’ of the defendant, and that subdivision 1, § 382, Code Civil Proc., provides that such an action may be brought within six years. He argues that the gravamen of the action, and foundation of the claim, are the contract or undertaking of the defendant, and that defendant was under no obligation to him excepting that arising therefrom and that subdivision 5 of section 383, being intended to apply to cases of liability not resting upon contracts, does not apply. It is, however, too well settled to require extended discussion at this day that common carriers of passengers are not insurers of personal safety, and that for an injury happening to the person of a passenger they are only liable for negligence in failing to use due care, diligence, or skill in and about their undertaking in order to prevent those injuries which human foresight and care can guard against. If there is any defect in the...
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Kilberg v. Northeast Airlines, Inc.
...as administrator has no separate right to sue this carrier in contract for causing his intestate's death (Webber v. Herkimer & Mohawk St. R. Co., 109 N.Y. 311, 16 N.E. 358), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App.Div. 191, 225 ......
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Paver and Wildfoerster v. Catholic High School Ass'n
...'negligence' or 'malpractice', and not the 'contract', Statute of Limitations applies (see, e.g., Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 314--315, 16 N.E. 358, 359--360; Calhoun v. Gale, 29 A.D.2d 766, 767, 287 N.Y.S.2d 710, 711, affd. 23 N.Y.2d 756, 296 N.Y.S.2d 953, 244 N......
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Baratta v. Kozlowski
...to personal injury lawsuits (see, e.g., Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824; Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 16 N.E. 358; Loehr v. East Side Omnibus Corp., 259 App.Div. 200, 18 N.Y.S.2d 529, affd. 287 N.Y. 670, 39 N.E.2d 290), but somet......
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