Lewis v. President of the Delaware & Hudson Canal Co.

*510 O’Brien, J. The plaintiff’s intestate was killed in an accident on the defendant’s railroad, near Central Bridge station, on the 18th of September, 1889. This action was brought upon the theory that the defendant is legally responsible for the injury which resulted in his death. On the trial, and at the close of the plaintiff’s case, the learned trial judge granted a motion for a non-suit, to which the plaintiff excepted. The appeal to this court presents the question'whether, upon the proof given, the plaintiff was not entitled to have the case submitted to the jury. The trial court having disposed of the case as presenting only a question of law the judgment must be upheld, if at all, upon the principle that upon no reasonable view or construction of the evidence could the action be maintained. If the proof given was of such a character as to warrant opposing inferences, or to justify different conclusions of fact in the minds of reasonable men, the case was for the jury. On the day of the accident the deceased, who lived in Schenectady, got on to a train on the defendant’s road at Cobleskill, for the purpose of reaching his home, but in order to do that by the regular route it was necessary to change cars at Quaker Street station. It appears that it was what was called a through train, that made no stop at any station between Cobleskill and Albany, but whether the deceased knew it or not when he boarded the train does not conclusively or satisfactorily appear. Before reaching the next station, which was Central Bridge, about three miles further east, the deceased was informed by the conductor that no stop would be made at Quaker Street. After passing the Central Bridge station and reaching a point about a thousand feet west, where a bridge crosses a stream, the train slowed up and, in the language of one of the witnesses, came almost to a stop. The conductor then told the deceased that he would have to get out quick, that the train would not stop at Quaker Street, and would be running faster very soon. The deceased immediately got up from his seat, went to the rear *511 of the car and stepping down, had just reached the ground when in some way he lost his balance and was thrown under a freight train passing rapidly in the other direction, close to the train from which he had just landed. The tracks at this point, it seems, are close together, and the reason, apparently, for reducing the speed of the passenger train, till it came almost to a stop, was to enable the freight train going in the other direction to pass it. There were two witnesses sworn who witnessed the transaction and it will be perhaps best described in their own language. The first one was Tracy, who was evidently traveling with the deceased, and his version is as follows: “ Was acquainted with Moses Lewis in his lifetime; remember September 18, 1889; I was at Cobleskill on that day; saw Mr. Lewis there on that day walking around the streets; afterwards he and I took the train at Cobleskill to go to Quaker Street, and just, before we got to Central Bridge the conductor came in and said, ‘ Tickets,’ and Lewis handed him his mileage book ; Lewis said, ‘ Two to Quaker Street; ’ conductor said, ‘ I don’t think we will stop at Quaker Street; ’ he took the book and tore out some tickets, and said, ‘ I will see; ’ he went on to the other end of the car and came back, and in the meantime Lewis said, ‘You have stopped there before]’ he said, ‘ I will see; ’ he came back in about a minute or so and said, ‘We •will,not stop at Quaker Street; you have got to get off here, and get off here quick; the train will be moving faster soon; ’ we started and walked to the rear platform; we walked there with a quick step ; we walked quick. Lewis was first and got down and took hold of the railing, and stepped off on the right-hand side; as we went to the rear end of the car he turned to the right and took hold of the railing and stepped off, and about the time he stepped off the train gave a sudden jerk and threw him against the rear end, and he seemed to whirl right round over the track and fell in under a freight train; when he got out on the platform I did not see the freight train; it was not in sight.” In response to some direct questions he further stated: *512 “ Q. As Lewis started to get off the train, describe what movements, if any, he made ? “A. After he had hold of the railing, when it gave the jerk, he tried to get back. “And when Lewis got off the last step the freight train was not visible to me, standing on the rear platform. “ It was the freight train that ran over Lewis; I do not know what part of the train he fell under; I could not see ; the engine of the freight train did not get by him before he finally let go ; it was not by; it was just there.” This statement was not materially changed on cross-examination, and being re-examined he further said that there was no freight train to be seen when he started to go down the steps. “We were trying to get off on the side where the depot was. Lewis took hold of the railing and was stepping off; the train gave a jerk and that threw him against the railing, and he seemed to hang on for a second and fell down. This was all done in a second; done quicker than you could tell it. When he whirled and fell down that was the first time I saw the freight train.” The other witness, a man named Burns, a passenger on the train, thus describes what took place: “ I was at the time in Cobleskill; have heard Mr. Tracy testify as to the accident that occurred near Central Bridge; I remember that occasion; I got on that train at Cobleskill; was going to Albany; got in the rear car; sat on the north side of the car facing the rear end; saw the witness Tracy; he sat next to the window facing me; Lewis sat with him; did not know him at that time; Lewis sat on the outside facing me in the same seat with Tracy. “ Q. Do you remember just before you got to Central Bridge the conductor came through ? “A. I think I can. » “ Q. What happened ? “A. The conductor came in for his ticket and this man, Mr. Lewis, took a ticket out of his pocket, or a book; I think it was black, and gave it to the conductor, and the conductor returned it to him again. *513 “ Lewis said he wanted to get off at Quaker Street to go to Schenectady; the conductor told him to wait a minute, to wait and see, he would come back ; something like that, and he returned the book to him, and he put the book in his pocket. “ The conductor went to the rear of the car; then he came back and touched Lewis on the shoulder and told him he would have to get off there before they were going any faster than they were going. “ He got up and went to the rear of the car, and Tracy and four or five men at the rear, I could not tell exactly, and started to get off on the right; the last time the conductor came back he said to Lewis: ‘ It is going pretty slow now, and it will be going faster, and you better get off now; that is all I have to say about it; ’ he told him it was a through train and did not stop at Quaker Street; when Lewis and Tracy got to the rear platform I was looking to the rear; looking right at them; they went off at the rear of the car ; it was all done in a minute; somebody pulled the bell; before that, when they got out on the platform, the train was just about going, and that is all there was of it; it was not going very fast; as-they got out there it began to pull up all of a sudden; it did not stop; it went quicker; the next thing I saw, somebody came and says: ‘ How you have got to stop, you have killed a, man; ’ but I could not say who it was; then the train stopped and backed up, and I got off and saw this man lying there with his legs cut off; at the time the conductor spoke to him first, when he came to take his ticket, it seemed to me that the train was just about pulling in pretty fast, but I could not tell how many miles an hour; we had not quite got then to-the Central Bridge depot.’ ” The judgment below proceeded upon the ground that this testimony was not sufficient to warrant a finding of negligence on the part of the defendant, and that it did show affirmatively that the deceased was chargeable with contributory negligence. Whether the deceased had paid fare as a passenger to some point east of Cobleskill or not is left in some doubt by the testimony. The conductor was not sworn, or *514 any evidence given in behalf of the defendant. If that was a material fact it should have been passed upon by the jury, as the proof was prima facie sufficient for their consideration on that point. But we think it was not material. The most that can be urged by the defendant in this respect is that the deceased was by mistake in the wrong train. But that circumstance did not affect or change the measure of duty which the defendant owed him as a passenger, or the degree of protection to which he was entitled against the negligent acts of the carrier or its servants. It is true that unless he took passage and paid fare to Albany, the next station where the train stopped, he could have been required to leave the train, but while on it the company owed him the same duty of protection against negligence as the other passengers. One of the questions for our consideration is whether upon the evidence given the jury could have found that the defendant did not perform that duty. It is not very material whether the language of the conductor to the deceased be regarded as a request, a direction, or an advice to leave the train. It might have been understood as a direction. The witnesses differ somewhat as to the words he used, and the construction to be placed upon his language was for the jury if that question was of any importance. The jury could have found that the deceased left the train, not of his own motion or upon his own judgment, but in obedience to the wish and suggestion of the conductor, and, but for what the conductor said to him, he would have remained in the car. The conductor’s action must be judged by the circumstances existing at the time. He brought the train almost to a stop while approaching the bridge and the coming freight train, and it could be inferred from the general situation that this was for the purpose of allowing it to pass. The presence of this freight train was an element of danger not necessarily known to the deceased, but which was or should have been known to the conductor. It was the passage of that train at the time the deceased was alighting from the passenger car that caused his death. Had the request, direction or invitation to get off *515 been given at some other time or at some other place where the only danger to be feared was that incident to getting off from a train moving at a slow rate of speed, there is no reason to believe that the deceased would have been injured. The deceased was induced to leave the train in the face of a danger which he may not have been aware of, but which must have been known to the conductor. It cannot be said as matter of law upon this evidence that the deceased knew of the approaching train which caused his death or could have seen it in time to avoid the danger. That was a proper question for the jury, but we cannot say that the deceased in the hurry and excitement of the moment and in the suddenness of the emergency either knew or could have known of the danger that awaited him on leaving the car, while the conductor did, or at least the jury could have taken that view of the evidence. Had the conductor stopped the train and requested the deceased to get of at a place where another train was passing at the same time, without warning him of the danger, it would be for the jury to say whether the carrier had used that degree of care which the law exacts of it under such circumstances. So we think that the conduct of the defendant’s conductor in this case presented a question for the jury. (Bucher v. N. Y. C. & H. R. R. R. Co., 98 N. Y. 128; McIntyre v. N. Y. C. R. R., 37 id. 287; Weiler v. Manhattan Railway Co., 53 Hun, 372; Reid v. Mayor, etc., 68 id. 110; 139 N. Y. 534; Pool v. Chicago, etc., Railway Co., 53 Wis. 657; Wharton on Neg. § 371; Keating v. N. Y. C. & H. R. R. R. Co., 49 N. Y. 673.) The language of the defendant’s servant, whatever its fair construction may be, was calculated and intended to put the deceased in motion, and may be regarded as the moving cause of his attempt to leave the train at the time and place that he did. The conductor, it must be presumed, knew the exact situation, the distance between the tracks which brought the trains close to each other, the presence of the coming freight train and the other elements of danger, if any, to which the deceased would be exposed in leaving the train. If, with *516 knowledge of the existence of a latent danger, known to him but not to the deceased, he requested or invited him to encounter this danger without informing him of it, or guarding against it, he failed to perform that duty to the passenger which the law requires. In dealing with the passenger the conductor represented the corporation, and any omission of duty or neglect on his part may be imputed to the defendant. Nor do we think that the evidence was of such a character as to warrant the learned trial court in deciding that the deceased was, as matter of law, guilty of negligence contributing to the injury resulting in his death. It cannot be affirmed, as a legal result of the evidence, that he was aware of the presence of the approaching freight train, or that, in the hurry and excitement of the moment, he could or ought to have seen it. The evidence on that point is not very clear,, but as it appears in the record the question could not properly have been taken from the jury. So far as appears the deceased had no reason to believe when he left his seat in the car that the conductor had invited him to alight from the train at a point where he was liable to encounter another, running at a high rate of speed in an opposite direction, and whether he discovered it on reaching the platform or before alighting was, upon the evidence, a question of fact. In this view the only other ground upon which contributory negligence could have been predicated is the undisputed fact that, the deceased attempted to alight»from a train while in motion, at a low rate of speed, at the request, direction or suggestion of the conductor. It is urged that negligence on the part of the deceased follows from that fact as a necessary legal inference, irrespective of what the conductor said or of the circumstances under which the passenger acted. This proposition is asserted upon the authority of the Hunter case, which was considered in this court upon two occasions (112 N. Y. 311; 126 id. 18). The deceased in that case attempted to board a moving train in the face of a situation and under circumstances attended with peculiar danger. Here the deceased *517 attempted to alight from one without being aware, so far as appears, of the presence of the approaching train which caused his death or any other danger except such as was involved in the act itself. The Hunter case recognizes a manifest distinction between the case of a passenger getting on and off a moving train. In the latter case the act may be justified or excused by a necessity or what is termed a stress of circumstances that cannot exist in the former. It is not necessary now to point out all the reasons upon which this distinction rests since this court has held upon full consideration that a passenger in attempting to alight from a moving train, under circumstances not unlike those appearing in this case, was not guilty of negligence per se, but that the question was one of fact for the jury. (Filer v. N. Y. C. R. Co., 49 N. Y. 47.) The same principle was assumed or decided in some of the other cases above cited. There is no inflexible rule of law that determines the nature of the act of the deceased in attempting to alight from the train. It must be viewed in the light of the actual situation as it appeared to him and judged by that measure of care and caution which a person of ordinary prudence is expected to observe under like circumstances. The. conductor had presented to the mind of the deceased the alternative of leaving the train immediately in order to reach his destination or of being carried out of his way to a distant point. There was but little time for thought or reflection, and whether, under such circumstances, the passenger made a prudent or a reckless choice was a question to be determined by the judgment of reasonable men. He had a right to assume that the conductor would not expose him to any concealed danger from a passing train. Had lie been informed of that element of risk he might not have assumed it or might have guarded against it. Whether, under all these circumstances, his conduct was careless or prudent was a question which could not properly be determined by the court, but belonged to the jury. The judgment must, therefore, be reversed and a new trial granted, costs to abide the event.