McDonough v. Third Avenue Railroad

O’Brien, J.: The plaintiff sued to recover for personal injuries which she alleges were sustained by being thrown by the sudden starting of one of defendant’s cars while she was attempting to alight. Upon the trial there was no serious dispute but that the bell was rung to start the car. The defendant claimed, however, that it was rung by some passenger on the rear platform while the conductor was inside the car. Counsel for the plaintiff contended not only that it was a question of fact for the jury as to whether the bell to ■start the car was rung by the conductor or by a passenger, but also that it was for the jury to say whether the starting of the car under the circumstances was or, was not negligence on the part of the defendapt, irrespective of the question of .who pulled, the bell,, and that whether the conductor rang the bell or some one else .did, the jury might find that the starting of the car was an act of negligence for which the defendant was liable. This latter contention the court refused to uphold, and instructed the jury that unless they “ find as a fact in this case that the conductor did ring the bell or that the motorman started the car without the ringing of the bell,” they must find a verdict for the defendant, and that “to give a verdict for the plaintiff” they must find “that the starting of the cap was by the action, of the conductor or motors man.” The learned trial justice asked the jury to find upon two questions of fact aside from the general verdict, first, “ Had the plaintiff alighted with her feet upon the ground where the car started?” and, second, “Was the signal bell to start the car rung by the conductor ? ” The jury were unable to answer the first question, but answered the second in the negative, and also found a general verdict for the defendant. The question upon this appeal is whether the charge of the court, [313] to which the plaintiff excepted, was right, namely, that “ if the jury iind that the starting of the car was in response to a signal which the mot orman supposed to come from the conductor, but which was actually made by the unauthorized action of a passenger, the plaintiff cannot recover.” In support of the contention that this view of the learned trial justice was erroneous, the appellant relies upon the obligation which rested upon the defendant as a carrier of passengers, and the relation of carrier and passenger that existed between the defendant and the plaintiff, which made it the duty of the defendant to see to it that the plaintiff was not injured, either through any act of negligence of its own or on the part of a third person, which included the obligation of seeing to it that the plaintiff had a reasonable opportunity to alight and that the car was not started while she was in the act of alighting. As abstract propositions, or as formulations of the rules bearing upon the obligations which rest upon a common carrier of passengers, we might have little fault to find with these contentions, but the concrete question which we are required to pass upon is within much narrower limits, namely, whether or not the obligation resting upon the defendant made it responsible for an. injury occasioned by the unauthorized act of a passenger in pulling the bell and thus starting the car. In approaching the discussion, we assume the appellant would concede that the action of the motorman in.starting the car in response to the proper signal was not a negligent act, and that there was no affirmative act of negligence on the part of the conductor which was the cause of the accident. The negligence of the defendant, if any, must consist, therefore, in the failure of the conductor to at all times have under his control the bell cord, so that it was made impossible for a passenger to ring the bell and start or stop the car. In other words, the logic of the appellant’s contention must carry him to the affirmance, of the proposition that the defendant was an insurer against any accident which might result to a passenger in alighting from a car caused by the unauthorized action of another passenger, whether by accident or design, in pulling the bell. The cases relied upon by the appellant in support of this contention are not in point. Poulin v. Broadway & Seventh Ave. R. [314] R. Co. (61 N. Y. 621) and Smith v. Kingston City R. R. Co. (55 App. Div. 143) support the general proposition which is well settled, that a conductor should give a passenger time to alight; and the Pennsylvania case cited of McCurdy v. Traction Co. (15 Pa. Super. Ct. 29) holds that a conductor cannot delegate the duty of starting the car, and that if he starts it upon information from a passenger that everything is “ all right,” his employer is liable upon the ground of negligence to a passenger thereby injured. Nor are . we assisted by the cases which place upon the employees of a common carrier the duty of protecting a passenger who has been assaulted by strangers or other passengers, because •all such cases are easily distinguishable. These cases all proceed .and rightly upon the theory that, upon the facts presented, there was an affirmative duty resting upon the employees which they were bound to discharge; but that is quite a different proposition from the one which we are considering as to whether the obligation which rests upon the defendant as a carrier of passengers upon street cars goes to the extent of requiring the conductor at all times to have under his control the bell cord so that no passenger or third person by any possibility can pull it. There is • no suggestion here that the conductor had reason to apprehend that a passenger would pull the bell, and, therefore, to predicate negligence upon the fact of its having been pulled by a passenger without authority and without the knowledge ór assent of the conductor as the plaintiff was .alighting, it would be necessary, as stated, to go to the extent of holding that under any and all circumstances the duty rested upon the conductor of so controlling and handling the bell rope while a passenger was alighting so that its being pulled by a passenger was impracticable or impossible. Considering the greater danger to be apprehended from such an unauthorized act of a passenger on a steam or an elevated railroad as compared with the less serious consequences to be anticipated from such an act when committed by a passenger upon a street surface road, we assume it will be conceded that the obligation, to say the least, is as strict and stringent in the case of the steam or elevated railroad as in that of the street surface railroad. Although with respect to none of these roads have we any case directly in point, there are two which furnish, we think, strong argument in [315] support of the view that even with respect to steam railroads or elevated structures the companies are not liable for the unauthorized action of passengers or third persons in interfering with the operation of the train which results in the injury of other passengers. In Ferry v. Manhattan Railway Co. (118 N. Y. 497), wherein the plaintiff received injuries while attempting to alight from one of the defendant’s trains, the question was whether the train was started by one of the brakemen or by a' passenger who caught hold of the bell rope to steady himself. The court charged that if the j ury found that the train was started by the passenger, the defendant was .not negligent, but if not so started it. was negligent. This charge was not expressly held to be a correct exposition of the law, but it was seemingly approved, in the opinion of the Court of Appeals, although it appears that the defendant having received the benefit of that charge and the plaintiff having recovered a verdict, the affirmance of the judgment rested upon the fact that, as the jury had found in plaintiff’s favor upon the disputed questions of fact, the verdict should not be disturbed. And in McDonnell v. N. Y. C. & H. R. R. R. Co. (35 App. Div. 147), where a passenger while standing, as the evidence tended to show, upon the platform of a car, was thrown to the ground as the result of the unauthorized application of the air brake by a fellow-passenger, by which act the train while moving at a rapid speed was suddenly stopped and in which case the verdict of the jury was favorable to the defendant, in holding that the plaintiff was guilty of contributory negligence in being upon the platform, the learned justice writing the opinion affirmed the judgment as supported by sufficient evidence, but he also referred with approval to the case of Deyo v. N. Y. C. R. R. Co. (34 N. Y. 9), wherein it appeared that “ some evil and malicious person had drawn out spikes and- pushed some of the rails from their bed and by this means the engine and part of the cars were turned off the track ” and the person was injured; and at the Circuit the plaintiff'was non-suited and the judgment was sustained at General Term and in the Court of Appeals. These two cases would seemingly indicate that even as to steam and elevated railroads a passenger injured through the unauthorized act of a fellow-passenger in interfering with the operation of the train cannot recover of the railroad company on the ground of negligence. [316] We think, therefore, it would be going further than any case to-which our attention has been called to hold that the- obligation which rests upon a carrier of passengers on street surface cars includes the obligation of insuring against the unauthorized aetpf a passenger in 'pulling the bell, which act by starting the car is the proximate cause of injury to another passenger alighting therefrom. There was no suggestion that the conductor was not properly attending, to his duties or that he was at any part of the car where of right he should not have been, but the plaintiff stands fairly and squarely upon the proposition that it was the duty resting upon the defendant under any and all circumstances to protect her from being injured while alighting by the starting of the car, and that though her injury was caused by the unauthorized act of a passenger in ringing the bell, nevertheless it was competent for the jury to find the defendant guilty of negligence. We have not overlooked the additional and somewhat broader claim that upon all the facts and circumstances, even though the jury found that the car'was started without the-knowledge or assent of the conductor, it was still a question of fact for the jury as to," whether the defendant was negligent. We think, however, we have sufficiently discussed the question to indicate our view that this contention is not sound and that the learned trial justice was ■right in charging the proposition to which exception was taken. The judgment accordingly should be affirmed, with costs. , McLaughlin and Hatch, JJ.,. concurred; Patterson, J., concurred in result; Ingbaham, J., dissented.