Allen v. Dry-Dock, East Broadway & Battery Railroad

McAdam, C. J., {after stating the facts as above.) A common carrier of passengers is not responsible for injuries suffered by them from any cause other than the negligence of persons employed by it, (2 Shear. & R. Neg. 4th Ed. § 494;) the rule that such carriers are bound to provide safe vehicles, and are liable for the consequence of defects irrespective of the question of negligence, [740] (Alden v. Railroad Co., 26 N. Y. 102; Hegeman v. Railroad Corp., 13 N. Y. 9,) having been modified by subsequent eases, (Carroll v. Railroad Co., 58 N. Y. 138; McPadden v. Railroad Co., 44 N. Y. 478,) wherein the doctrine laid down in Christie v. Briggs, 2 Camp. 79, that a carrier of passengers is not an insurer of their safety, was reaffirmed. The plaintiff’s action is therefore founded on the defendant’s negligence, and, unless that feature of the case has been established, the action must fail. A carrier of passengers is not required to be gifted with prescience, nor is it bound to know, or chargeable for not knowing, things which ordinary skill and foresight would not have revealed; and there was no negligence established in this case, unless the act of the driver in receiving the plaintiff upon the defendant’s car, in its disabled condition, imputes negligence to it. The car was road-worthy and free from all defects at the time it commenced the journey on the trip in question; and this is enough, ordinarily, to exempt the carrier from responsibility. Burns v. Railroad Co., 13 Ir. Com. Law, 543. But the rule, to be reasonable, must have reference to the journey of the passenger, as well as the trip of the car. The plaintiff’s journey commenced at the corner of Columbia and Grand streets, and he was injured at the beginning of it by reason of the disabled condition of the car at that time. True, the executive officers of the defendant did not know of the injury; nor had its car inspectors any opportunity to learn of it, for their examinations are made only after the cars reach the depot. The driver of the car, however, knew that it was disabled; for he at once attributed the injury to the drunken man who boarded the car, and he cautioned the lady who attempted to enter the ear at Pike street about the injury. The fact that he did not know that the window pane had been fractured, and was in danger of falling out upon any one attempting to open the door, is owing to his indifference as to the extent of the injury done; for, if he had gone to the rear of the car, a casual look would at once have apprised him of the true situation, and the dangers incident to it. The driver was negligent in not making the examination suggested, and is chargeable with knowledge of all that the required examination would have revealed. There being no conductor on the car, the driver had exclusive charge of it. He represented the company as to any matter connected with its management and control, (Wood, Ry. Law, 449-452, 1202;) and knowledge chargeable to him is, under such circumstances, imputable to it. In the nature of things, corporations must act solely through agents; and that their powers and duties may differ in degree should make no difference in so far as duties and liabilities to passengers are concerned. The driver, during the trip, was the sole agent and representative of the corporation; and its authority, within the scope of his duties, was for the time being, vested in him. The driver might and should have discovered the fractured glass, and either warned the plaintiff against it, or have refused to receive him as a passenger upon the car, on account of its dangerous condition. He did neither according to the finding of the jury. The plaintiff having been injured without any apparent fault of his, the law raises a prima facie presumption of negligence against the defendant. Christie v. Griggs, 2 Camp. 79; Dawson v. Railway Co., 5 Law T. (N. S.) 682. The defendant undertook to rebut this legal presumption, but the evidence by which it sought to do it proves that its driver was negligent in respect to acts for which it is answerable to the injured party. The jury found that the injuries complained of were the result of negligence on the part of the defendant, and that the plaintiff was free from fault. The evidence justified this finding, and, as the damages are not excessive, we find no reason for disturbing the verdict on the facts. The exceptions will be considered in order. E'irst. “Question. Was there a conductor on the car?” This question was proper, as the answer called for merely described the situation under which the car was run. Burgess v. Railroad' Co., 20 Wkly. Dig. 249; Houghkirk [741] v. President, 92 N. Y. 219, 227; Sawyer v. City of Amsterdam, 20 Abb. N. C. 227, 229. The testimony proved a fact not irrelevant. It was descriptive only. It did not prove negligence, however, and the defendant might have asked the trial judge to so charge; but no such request was made. It certainly proved that the driver was the sole representative of the defendant in charge of the car. Second. “Question. Were there any steps in front ?” This question, like the last, was descriptive merely, and was for a similar reason admissible. Third. “Question, [to defendant’s driver on cross-examination.] Is it not a fact that you left Ridleys’ with money belonging to them? Answer. Yes, sir, I did. Q. Moneys that you had collected for them? A. Yes, sir.” The defendant claims that a witness can be impeached in only three ways:- (1) By disapproving the facts stated by him; (2) by general evidence affecting his credit; (3) by proving that the witness has made statements out of court contrary to what he has testified at the trial,—citing 1 Green]. Ev. §§ 461, 462. We think the evidence was properly received. It did not ask as to an accusation, but a fact. The distinction is obvious. Thus, while you cannot ask a witness whether he has been arrested, (Wright v. People, 1 N. Y. Crim. R. 462,) or indicted, (Ryan v. People, 79 N. Y. 599,) or expelled from the fire department, (Nolan v. Railroad Co., 87 N. Y. 68,) you can ask him whether he was not guilty of a particular offense; for, as the court of appeals said in People v. Irving, 95 N. Y. 544: “Mere charges or accusations, or even indictments, may not so be inquired into, since they are consistent with innocence, and may exist without moral delinquency; but, where the witness is called upon to confess or deny his guilt of a crime, his answer, if in the affirmative, tends to impair the credit of the witness by its tendency to establish a bad moral character. The party putting such a collateral question is concluded by the answer of the witness, and, if he denies the offense, cannot be contradicted by other evidence.” Conley v. Meeker, 85 N. Y. 618. The witness (the defendant’s driver) testified that he had been discharged from Ridleys’, and that lie had left with moneys which lie had collected for them. He had been in their employ as a driver. The unexplained failure to pay over these moneys constituted embezzlement, under the statute, (3 Rev. St. 6th Ed. p. 952, § 73,) and is made larceny by thePenal Code, § 528. The driver had been called by the defendant to contradict the plaintiff, and did contradict him as to certain material matters ; and it was competent for the plaintiff to break down his credibility by proof from his own lips that he had been guilty of acts tending to prove his bad moral character. In People v. Casey, 72 N. Y. 398, the prisoner, on his trial for murder, was called as a witness on his own behalf, and on cross-examinatian was asked as to other acts of wrong-doing committed by him. In sustaining the trial judge, the court of appeals said: “ When a prisoner offers himself as a witness on his own behalf, he is subject to the same rules of cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impair his credibility. Such questions may tend to show that he has before been guilty of the same crime as that for which he is put on trial; but they are not on that account incompetent. * * * The extent to which such an examination may go to test the witness’ credibility is largely in the discretion of the court. ” We think the right was not abused in the present instance. Fourth. “Question, [to defendant’s driver.] Was it not one of your duties as the driver of this Co., under the rules of the Co., not to take any passengers on board a car if it is damaged or injured en routeí” The witness answered: “If it was broker m any way so as to hurt any one, then we were supposed not to take any passengers.” This question, particularly in view of the answer made, is unobjectionable, for the witness merely stated the correct rule of law on the subject, irrespective of any rules of the company. No written or printed rules were referred to or attempted to be proved. [742] The other exceptions taken relate to the charge of the learned trial judge. The defendant’s counsel requested the trial judge to charge that, “if the car was in good order at the beginning of the trip, then the defendant was not guilty of any negligence or omission to provide a road-worthy vehicle. ” The trial judge properly refused to charge in these words. The request, as applied to the peculiar circumstances of this ease, is, for reasons before discussed and which need not be repeated, inapplicable to this case. The defendant’s counsel excepted to the remark of the trial judge (1) that the jury might take into consideration the absence of a conductor on the car; (2) and that, if the driver received passengers after notice of the defect in the door of the car, the company would be chargeable with notice, and that there would be negligence on the part of the company after that. The reference by the trial judge to the absence of a conductor was casual and descriptive only, and did not carry with it the idea that the absence of a conductor was to be regarded by the jury as negligence per se, or as any evidence proving negligence. If the defendant had desired a clearer ruling on this subject it might have requested the judge to charge that the absence of a conductor was not evidence of negligence, and, if the trial judge had refused the request, the error might have been fatal to the plaintiff’s case, (Lamline v. Railroad Co., 6 N. Y. St. Rep. 248; Railroad Co. v. City of Brooklyn, 37 Hun, 413;) but no such request was made, and no such error committed. As to the second branch of the exception under consideration, the trial judge said; “The driver is in charge of the car in question, and, if he observes any defect in the car which renders it dangerous for persons to occupy it, the company is chargeable with notice if he permits passengers to enter and ride upon it after he has knowledge of such defect.” If we are right in the conclusion we have arrived at in respect to the driver’s powers and duties under the circumstances, (a subject before discussed,) this instruction was correct. To hold the converse of the proposition to be true, would be to decide that a driver, intrusted with the sole charge and control of a car disabled on the trip to such an extent as to endanger passengers, might nevertheless, with full knowledge of the danger, accept them on the car without imposing any responsibility whatever upon the company for the consequences. We cannot subscribe to so broad and dangerous adoctrine. Upon the entire case, we think the judgment should be affirmed, with costs. Ehrlich, J., concurs.