Burns v. Delaware & Hudson Co.

Kellogg, J.: The material facts are stated in the report of this case on a former . apjieal (110 App. Div. 592). The following additional facts now appear: The accident occurred at four-forty- p. m. The train was . scheduled to leave the station at five p. m. Upon this trial the court substantially charged that" if the engine and train were put and kept in the position in which they were, by the direction and •under the control of the Troy .Union Station Company,, the defendant ' could not be charged with obstructing -the street, even though the ■ engine-extended beyond the line of Fulton street, but submitted to the jury the question whether the engine obstructed the street, whether the obstruction was willful and caused the injury. The charge that the defendant was not responsible for "the location and ' keeping of this engine, over the line of Fulton street, if that act .was caused by the Union Station Company, constituted the correct rule and prevented a recovery. The defendant had no station or tracks between or upon these streets. It had to rent its facilities of the Union Station Company. Several other companies also had like facilities in such station. It is manifest that the defendant, in ' a joint station like this, could not operate its trains in its own manner and subject to its own discretion, but.all of the" companies must operate their trains and place them in the station under the direction and subject to the control of the officers of that company. The life and safety of the traveling public required that there should be but one control of the station, and that each separate company could not have its own way. It * will not do to say that if the defendant entered into a contract which will compel it to commit a nuisance at the command of the Union Station Company it is liable nevertheless. It has not entered into any such contract. It had the "right and it was necessary for it to .enter into a contract that its trains should be controlled by that company-in its station. Defendant had the right to assume that the trains would be controlled accord [113] ing to law and with due respect to the rights of the public. I hire an independent contractor to do a piece of work lawful in itself and which may be done in a lawful manner; he does it in an imperfect and reckless manner and in such a way that some one is injured. Still I am not liable, .because the acts I contracted for were legal, and the only negligence is the negligence of the contractor in doing a proper thing in an improper way. My servan t takes my carriage to cross, the river upon a ferry boat and -pays the ferryman for the service. The ferryman takes charge of the carriage and man according to the rules, of the boat, and by placing them improperly on the boat causes an injury to another. I am not responsible for his carelessness as he was an independent contractor. Here the situation of the. defendant is practically the same. It put its different trains and trainmen in charge of the Union Station Company while in and about that station. The Union Station Company was an independent contractor and responsible for the manner in rvhich it performed its duties. If the engineer upon the train, by direction of the Union Station Company, violated the statute by obstructing the street for more than five minutes, that engineer and the Union Station Company may be guilty of an offense, but such offense would furnish no ground for liability against a defendant who was powerless to remove the train or control its movements. When a train is ordered into this street, the defendant and the engineer have the right to suppose it will not be required to stayfionger than was permissible, and if the Union Station Company caused it .to stay an improper time it is the act and default of that company. It is conceded, of course, that the defendant could not engage the Union Station Company to do an illegal act and shield itself from liability because it was done by its employee and hot by itself. But this train-was upon the Union Station Company track, subject solely to its directions, and, while the defendant’s servants irianned the train, they and defendant were powerless to act. While the Union Station Company ordered this train into the depot twenty minutes ahead of time for departure, the defendant is not charged with knowledge that this engine was to be placed into or near the street, and when the engine was first directed to go upon the street the officers of the train did not know that they would be com [114] pelled to wait there an unreasonable time. It does not appear that they did not have reason to believe the train' would be backed up and off the street. The defendant itself is not, therefore, liable for the criminal act, if it was one, of the trainmen or of the Union Station Company in keeping, this engine ;u-pan the public street beyond the prohibited time, and no negligence cari be assumed against it on account of its train being there. The responsibility under the statute, or on the question of a nuisance, rests upon the Union Station Company, or the.officers of the train itself. - The defendant has violated no duty which it owed to the public or plaintiff, and there is no evidence tending to show that it committed any nuisance or was guilty of any negligent act., , The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concr' red; Parker, P. J., in -result j Smith, . J., in memorandum.