Costikyan v. Rome, Watertown & Ogdensburg Railroad

Corlett, J. On the 28th day of June, 1888, the deceased took passage on the defendant’s road from Magara Falls to Watertown. The train consisted of an engine, baggage, smoking-car and several passenger coaches. A short time after entering the coach he went into the smoking-car with a cigarette. After smoking he started back into the passenger coach. While he was in the act of stepping from the platform of the smoker to the coach in the rear, the coupling between them broke and the deceased was thrown down a steep gorge over which the train was passing, and killed. The plaintiff was appointed administrator. This action was brought. A trial was had in April, 1890, which resulted in a verdict of $5,000 for the plaintiff. A motion for a new trial was made and denied, and the defendant appealed from the judgment and order to this court. The evidence on the trial tended to show, and the jury found, that the breaking of the coupling was caused by the negligence of the defendant. The central contention of the defendant on this appeal is based on the assumption that it was negligence on the part of the deceased to go into the smoker and return while the train was in motion. It is undoubtedly true that, ordinarily, a passenger who goes from one car to another while the train is in motion assumes the risk incident to such an undertaking. If the ordinary motion of the train should shake him from the platfoym, there being no defect in coupling or machinery, the company would not generally be liable; not that the 684 act of the passenger in passing from one car to another would be one of negligence, but because he would have just as good an opportunity as the defendant to know that there was some hazard attending a journey through the train while it was in motion. This fact being manifest, and as much within the knowledge and observation of the passenger as the company, in the nature of things he incurs the ordinary risk attending a passage from one car to another under such circumstances. There is no statute or rule of the company forbidding a passenger from going from a passenger coach in 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. It is not seen how they would incur any greater risks than the visible ones attending the journey. There is nothing tending to show that this accident would have happened except for the defective coupling. If the connection of the cars had been safe, the- deceased would have gone and returned, so far as appears, in perfect safety. It is not negligence per se for a passenger to stand on the platform while the train is in motion. Nolan v. Railroad Co., 87 N. Y. 63; Marquette v. Railroad Co., 33 Iowa, 570; Goodrich v. Railroad Co., 29 Hun, 50. The position of the deceased was in many respects the same as that of an employe. In Goodrich v. Railroad Co., 116 N. Y. 398, 22 N. E. Rep. 397, it was held that a railroad corporation owed its employes the duty of furnishing cars properly equipped with safe and suitable appliances. All the cases are to the same effect. The same is true in the ease of a passenger. The company owes him the duty of providing safe machinery and appliances; and if, by its negligence in those respects, a passenger is injured, no reason is seen why it is not liable for the damages sustained, in the absence of negligence on his part which contributed to the injury. It was not shown on the trial that in the present case the deceased in any way contributed to produce the accident which caused his death. The evidence tends to show the reverse. He only assumed the visible risks incident to going from one car to another while the train was in motion. In doing so he had a right to assume that the couplings and appliances were in a safe and proper condition. The injury was caused by the want of safe couplings. The case was properly submitted to the jury. Palmer v. President, etc., 120 N. Y. 170, 24 N. E. Rep. 302. No errors appear on the record which would authorize a reversal. The judgment and order must be affirmed.