Smith v. Kingston City Railroad

Parker, P. J.: In Laffin v. Buffalo & Southwestern R. R. Co. (106 N. Y. 136, 139), referring to the duty of a railroad company, it was said: “ It was not bound so to construct this platform as to make accidents to passengers using the same impossible, or to use the highest' degree of diligence to make it safe, convenient and useful. It was bound simply to exercise ordinary care, in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it' was devoted.” And on page 141 it was further said: “Asa general rule, when an appliance or machine or structure,' not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of culpable imprudence or carelessness.” And the principle there enunciated has in several more recent cases been recognized as the correct one. (Kelly v. Manhattan R. Co., 112 N. Y. 450 ; McCaldin v. Parke, 142 id. 570; Frobisher v. Fifth Avenue Transportation Co., 151 id. 434.) Applying this principle to the facts of this case, it is difficult to see how culpable negligence can be predicated against the defendant for using the plunger which it did use at the time plaintiff was injured. No evidence in the case disputes the testimony that there were no better or safer cars made than those made by the Pullman Company. It is also not disputed but that the car in question was .. purchased from that company. If we assume, as plaintiff claims,, that the plunger, at the time of the accident, was the samé one and in the same condition as it was when received from such builders, defendant might reasonably rely upon their experience and skill and venture to use it as a necessary appliance, safely and properly located and arranged. If we assume that the defendant, learning that ladies’ dresses would occasionally catch thereon, had somewhat changed its loca [145] tion and placed a hood over the same, still the principle above cited applies. Upon its face such change seems to be an improvement upon the plan adopted by the Pullmans. It is a better protection against dresses catching thereon, and there is not a particle of evidence showing that any better method of locating and protecting such plunger is in use, or was known to any one. What more care could the defendant have taken than it did take ? Where in the market could it have got a better or safer appliance than the one it used ? There is no evidence in the case, of any description, showing, or from which it might be inferred, that any safer one existed. The one it did use was approved by the experience of the best makers, and any danger to be apprehended from its use was met by the best improvement known to the defendant, than which, so far as the evidence shows, there was no better. Upon such a state of facts, as‘matter of law, no culpable negligence could be imputed to the defendant, and it was, therefore, error to instruct the jury that if they found that this was not a properly constructed car, and that the defendant did not get the best appliances that the market afforded, in respect to the car, they might find that the defendant was negligent. So far as the construction'of the car and the plunger was concerned, the case is barren of any evidence to show the defendant liable. But the charge seems inaccurate in another respect. If the question of construction might properly have been left to the jury, there being no evidence that any safer appliance was in use, or could have been procured in the market, the jury were allowed to imagine one and find the defendant liable for not discovering aud using it. This conclusion would result in a reversal of this judgment were it not that there is other evidence of defendant’s negligence so plain and controlling that the jury would not have been justified in reaching any different result. Such evidence exists, I think, upon the question whether there was not negligent haste in starting the car, sufficient to render the defendant liable. However, inasmuch as we cannot know that the jury have ever passed upon this question in favor of either party, we can hold the defendant liable upon this ground, only upon facts which are not disputed, or as they are claimed to be by the defendant itself. [146] That the plaintiff’s dress caught upon the plunger, and that before it was loosened therefrom the car started and dragged her, by the dress so attached, some distance, is not disputed. Now, conceding that the plaintiff had stepped from the car, as the conductor testifies, it is clear that she had not yet entirely detached herself therefrom. Clearly the car was started before she had had time to unloose her dress from the plunger; and the question is presented whether it was not the duty of the conductor to give her time, not only to get. off, but to release herself entirely from the car, and was. it not his duty to nptiee her condition and know that she was free from the car before he started it ? • It is clear from the evidence, too clear' for dispute, that the conductor, not anticipating that the dress might catch, started the car upon the instant she alighted and before he could notice that it had caught. It has been held that the omission to give a passenger reasonable time to alight from a car is culpable negligence. (Poulin v. Broadway & Seventh Ave. R. R. Co., 61 N. Y. 621; Simpson v. Rome, W. & O. R. R. Co., 48 Hun, 113, 116.) Is it not clear that this plaintiff did not have that reasonable time to which she was entitled ? I am of the opinion that she was entitled to not only time enough to step off, but also to clear her skirts, in the event that they caught upon any obstruction on the platform,, and.that it is the duty of the conductor to see that she is clear from any such attachment before he starts the car. If he starts before he knows that she is thus free, it is a negligent method of starting, and he takes the chances. (Colt v. Sixth Ave. R. R. Co., 33 N. Y. Super. Ct. 189; affd., 49 N. Y. 671; McDonald v. Long Island R. R. Co., 116 id: 546.) No great in jury was to be apprehended, and probably none would have been sustained, by the mere catching of this plaintiff’s dress upon the plunger; but the starting of the car while it was so caught was an act likely to produce serious, injury, and was, in fact, the real cause of her injury in this case. Upon the undisputed facts of this case I cannot but conclude that the conductor’s negligencé caused this injury, and, therefore, the verdict must have been against the defendant upon that question. It is claimed that the plaintiff was herself negligent, in that she traveled upon the car with a dress so long .'that it would be more than likely to catch upon such appliances as weremecessarily extend [147] ing above the platform. The cases of Poulin v. Broadway & Seventh Ave. R. R. Co. and Colt v. Sixth Ave. R. R. Co., above cited, are authorities against our holding such an act negligent as matter of law. The verdict, although large, is not so' excessive that we should interfere with it, if we believe that her present condition was caused by this injury, and we cannot refuse to so believe, unless we discredit the evidence of several of the plaintiff’s witnesses. Those witnesses do not seem to be in any way impeached, and I am of the opinion that the verdict must be allowed to stand. I find, therefore, no error in this record for which this judgment should be reversed, and hence it must be affirmed, with costs. All concurred, except Smith and Kellogg, JJ., dissenting. Judgment and order affirmed, with costs.