Kettel v. Erie Railroad

Smith, J.: The plaintiff had taken one of the defendant’s trains at Jersey City for Rutherford, N. J. As the train was nearing the Rutherford station the trainman came into the car and called the name of the station. Before the car had come to a stop, but while it was practically in front of the station, the plaintiff went upon the platform of the car. While there and before the train had stopped the train gave a jerk, and he was thrown from the platform to the ground and suffered the injury for which he here sues. There is no question that the jerking of the train whereby the plaintiff was thrown to the ground might have been found by the jury to have been sufficient upon the question of defendant’s negligence. Furthermore, if there had been no statute of New Jersey, under the decisions probably the going upon the platform when the train was so nearly stopped directly in front of the station might not be deemed as matter of law contributory negligence. The trial — 432 — court nonsuited the plaintiff solely upon the ground that the plaintiff had gone upon the platform of the train before the train had stopped in violation of the posted regulation of the company in which case, under the New Jersey statute, it is declared that the company shall not be liable for the injury. That statute reads as follows: “ 39. In case any passenger on any railroad shall be injured by reason of his going * * * on the platform of a car * * * in violation of the printed regulations of the company posted up in a conspicuous place inside of its passenger cars on the train, such company shall not be liable for the injury; provided said company at the time furnished seats inside its passenger cars sufficient for the proper accommodation of its passengers.” (N. J. Laws of 1903, chap. 251, § 39.) No question is made of lack of seating accommodation. The evidence shows that there was conspicuously posted at each end of the car the following sign in large letters: “Passengers must keep off the platform until the train stops.” The statute is clear. The notice posted is explicit. It'would seem as though this statute and this regulation were enacted to meet this precise case. The statute exculpates the railroad company where a passenger goes onto the platform in violation of a rule posted in the car, and this rule expressly forbids passengers from going onto the platform before the train stops. There can be no ambiguity either in the terms of the statute or in the terms of the notice. To hold the defendant liable in this case is to repeal the statute. This rule appears to have been held in the Supreme Court of New Jersey in Forrest v. N. Y. & Greenwood Lake R. Co., not as yet reported but stated in the briefs. The Supreme Court of New Jersey is not its highest court, and perhaps its decision is not compelling upon us as to the construction of the statutes of New Jersey. Nevertheless, it must be deemed persuasive, and as it accords with what I deem to be the unmistakable reading of the statute I think it should be followed in this State. There is not a reported case in any State "in which a railroad company has been held liable for an injury occurring to a passenger while on the platform of a car in violation of a specific and unmistakable notice as in the case at bar. The — 433 — statute of our own State declares the company shall not be liable for injury to a passenger while on the platform of a car in violation of the printed regulations of the corporation posted in a conspicuous place inside the car. (See Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 83.) In the case of Buel v. New York Central Railroad Co. (31 N. Y. 314) it was held: “A passenger, who is injured in attempting to leave the cars on seeing two trains approaching each other at such a speed as to make a serious collision inevitable, is not to be deemed guilty of negligence. Although he is upon the platform of the cars, attempting to escape, at the time he was injured, he is not standing or riding upon the platform in such a sense as to excuse the company under the regulation prohibiting passengers from standing or riding on the platform when the cars are in motion.” The notice posted in the car in the case cited prohibited passengers from standing or riding on the platform of any cars. The courts have generally agreed that such a general regulation posted in the car is not a prohibition argainst a passenger stepping upon the platform at a station for the purpose of alighting. In Costikyan v. Rome, Watertown & Ogdensburg Railroad Co. (58 Hun, 590) an action was brought to recover against a railroad company the damages resulting from the death of a passenger who, a short time after he had entered a passenger coach on a train on the defendant’s road, went into the smoking car, and after smoking a cigarette started to return into the passenger coach. While he was in the act of stepping from the platform of the smoking car to the passenger coach, in the rear thereof, the coupling between those two cars broke and the deceased was thrown down a steep gorge, over which the train was passing at the time, and was killed. The jury found that the breaking of the coupling was caused through the negligence of the defendant. It was held that the passenger, in the absence of instructions or notice from the company not to do so, only assumed, in going from one car to another while the train was in motion, the ordinary risks incident to such action on his part, and had a right to assume that the couplings and appliances were in a — 434 — safe and proper condition and that the railroad company was liable for the consequences of their not being so. The court in its opinion says: “ There is roo statute or rule of the company forbidding a passenger from going from a passenger coach from [sic\ which he is riding into the smoker and after that returning. In fact, a smoking car constitutes a part of the train for the accommodation of passengers; and in the absence of instructions or notices by the company to passengers not to go to it and return while the train is in motion, there is an implied license'that they may do so subject, of course, to the ordinary risks obviously involved. ” In the opinion of Mr. Justice Macomber in that case our statute referred to in the Buel case was discussed. In reference thereto, among other things, the learned justice says: “ The regulation of this defendant, posted inside its cars, printed on metal, is as follows: ‘ Passengers are not allowed to stand on the platform. ’ Passing from one car to another while in motion is not of itself a violation of these regulations.” In Schultze v. Missouri Pacific Railway Co. (32 Mo. App. 438), under a statute similar to the one in question, a notice was posted in the cars forbidding the passengers to stand upon the platform. It was held in that case that this did not apply to a passenger about to alight from the train which was stopping. The California statute exempts a corporation from liability in case a passenger is injured on the platform of a car in violation of the printed regulations posted within the car. In Thomas v. San Pedro, L. A. & S. L. Ry. Co. (170 Fed. Rep. 129) one Thomas was a passenger on defendant’s railroad. The defendant had posted a regulation which forbade passengers from riding on the platform or steps of the car and required them to remain in their seats while the train was in motion. In that case Thomas went upon the platform, preparing to alight, and it was held that he was not riding on the platform within the meaning of the prohibition. The same rule was held in Pruitt v. San Pedro, L. A. & S. L. R. Co. (161 Cal. 29). It would seem as though, irrespective of the statute, a public service corporation, held to the strictest responsibility to protect its patrons, should be allowed to make reasonable rules to guard against injury, and where those rules are explicit and are — 435 — deliberately violated by the passenger the corporation should be relieved from liability. Suppose notice were given to passengers that when alighting they must not go upon the platforms of cars until the train has fully stopped, can it be possible that a passenger by an act in deliberate violation of that rule can recover damages for an injury sustained by reason of such act ? Such a proposition seems to me abhorrent to every dictate of fair play. But in this case there was a statute permitting this very rule and exempting the corporation from liability for injury occurring while violating the rule. The rule itself cannot be misunderstood. When the posted notice forbade a passenger from going onto a platform until the train stopped, the natural and only inference is “ until it stopped for the purpose of allowing passengers to alight.” A passenger train does not usually stop for other purposes. No one claims that this rule is a prohibition against passing from one car to "another when necessary, as in going to a smoker or diner. Such would not be a reasonable construction of the rule as held by all the cases. So a posted rule against riding or standing on a platform, or requiring a passenger to remain in his seat while the train is in motion does not apply to a passenger about to alight, because it would not naturally be so understood by the passenger. And this is all that has been held by the cases cited in this opinion or in the opinion of the presiding justice. The distinguishing feature of this case is that this plaintiff was injured while deliberately violating a rule which unmistakably forbade his going onto the platform “until the train stops.” In some of the cases the slowing of the train and announcement of the station is spoken of as an invitation to go upon the platform for the purpose of alighting. But the station must be announced and the train must slow up in approaching the station. These facts can only have significance where the notice posted is a general notice as against standing or riding on a platform. It is a “far cry” to interpret these acts as an invitation to the passenger to come out upon the platform, as against the explicit unmistakable prohibition of the posted notice. If the statute means anything it permits this notice and exempts defendant from liability for accidents from its violation. If the prohibition in the notice — 436 — means anything it prohibits the very act of the plaintiff which resulted in his injury. The judgment and order should, therefore, be affirmed, with costs. Dowling and Page, JJ., concurred; Clarke, P. J., and Laughlin, J., dissented.