Brown v. . N.Y.C.R.R.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It is insisted by appellant that there was no evidence of negligence on its part which contributed to produce the collision; and that the court erred at the trial in denying the motion for nonsuit on that ground, and in submitting the question of defendant's negligence to the jury. On this question the point submitted to the jury was, whether the defendant exercised its right of making a running switch, at a proper place and with the use of due care. The place was certainly one demanding great caution. The crossing was over the street of a populous village where travelers were constantly passing. The view of approaching trains was, in a great degree, cut off by obstacles on the side of the street and along the line of the railroad. The act of making a "running switch" to cut out of a long train, a car, to be left, and to bring the remaining portions of the train together while moving at a rapid rate, evidently requires a good degree of care and skill; and if it be done over any public crossing, it must expose passers by to more than ordinary danger. A person approaching a crossing and seeing an engine with a large number of cars attached passing rapidly by, would naturally suppose that the danger of collision had ceased. His eye would follow the receding train, the noise of which would be apt to drown that made by approaching cars; but if he found himself suddenly confronted by a car rushing by of its own momentum, his attention would be likely to be arrested by and attracted to that without thinking that more were to follow on their loose and unheralded career. I am at a loss to see how the defendant could justify the selection of such a place for the performance of what, under the circumstances, appears to me to be so dangerous an act; and more particularly to see any ground on which a court could adjudge, as matter of law, that it was safe and proper in such a locality, to make a running switch, whereby one train is detached into three parts, the two last propelled by their own momentum at a rapid rate over a much frequented thoroughfare, without signals or warning of any kind. In my judgment the act was gross negligence, for which I should hesitate to say the company could not be held to a criminal responsibility. There was evidence on the part of the defendant tending to show care in the manner of making the running switch on this occasion, and that it had been accustomed to make such switches at this point for some months, so that travelers might have had notice to some extent of their being made, which rendered the question a fair one for the jury; and it seems to me there was no error in submitting it to them.

It is also claimed to be error not to have nonsuited for the alleged negligence of the driver of the stage, and to have submitted the question of his negligence to the jury. The court charged the jury that the negligence of the driver must be regarded as the negligence of the plaintiff; that he represented her, and she could not recover in this action if his negligence contributed to produce the injury. Since the trial of this action, the decisions of this court, in Chapman v. The NewHaven R.R. Co. (19 N.Y., 341), and Colegrove v. N.Y. N.H.R.R. Co. (20 N.Y., 492), have been published. In the former of these cases, this court held that a passenger by railroad is not so identified with the proprietors of the train conveying him or their servants, as to be responsible for negligence on their part, and could recover for personal injuries from a collision through negligence of the defendant, although there was such negligence contributing to the collision on the part of the train conveying him as would have defeated an action by its owners; and in the latter case, it was held that the injured passenger could maintain his action against the proprietors of both on the ground of their concurrent negligence. I do not perceive why these cases do not dispose of the question as to the negligence of the driver in this case. The plaintiff was a passenger in a public stage. She had no control of its management or direction; and occupied no relation to the driver different from that which passengers occupy to any public carrier of persons. In principle, there is no difference whatever between her relation to the carrier and that of a passenger on a train of railroad cars. The difference is one of fact merely, growing out of the difference of motive power and the corresponding necessity for more stringent rules and greater vigilance in one case than in the other. But a majority of the judges are of opinion that the true rule, in a case of thiskind, was laid down at the circuit. It becomes necessary, therefore, to consider the question in the same aspect in which it was presented at the trial. It is not pretended that there was any fault or want of care on the part of the plaintiff herself; and it seems to me there was no error in submitting the question of the driver's negligence to the jury. As he approached the crossing and heard the train, he stopped and waited. He started on when danger from it had passed, and had got very near the track when the first detached car came by; he stopped again, and when that had passed, suspecting no further danger, he drove on. His horses were on the track, and were trotting, when he saw the new danger: it was within two rods of him, and he quickly whipped up his horses to escape. Could he have more safely drawn back and stopped? It is impossible to tell. He was placed where there was no time to decide the question. His peril called into action his instincts, and not his reasoning faculties; and, under such circumstances, the party who had put him in jeopardy is responsible, and not he, if he mistook the safest means of escape. (Stokes v. Saltonstall, 13 Pet., 181.)

It was no error, therefore, to leave it to the jury to say, whether, under all the circumstances, the driver was negligent in attempting to escape by crossing the track. But was it negligence not to have seen the cars by which his carriage was hit, in time to have stopped? They gave him no warning. He had seen a train pass, and had stopped for it: a single car following at a distance from it, and had waited for that. These had attracted his attention, his eye naturally following them. Was he bound to suspect that more were coming, and be on the lookout for them? I think it is asking too much to say that it was negligence, as matter of law, not to have anticipated that detached cars were following in the rear of the train that had passed. The signals of the train had told him where the danger was, but gave no warning of unsignaled danger to follow.

It was not error to submit to the jury the question whether the injury to the plaintiff's sight was permanent or not. There was slight evidence on the question, and the court gave the jury a caution on the subject, which the amount of the verdict shows they did not fail to heed.

There was no error in allowing proof that plaintiff complained of suffering from headache and defective sight. The fact of making complaint in such cases is admissible. (Caldwell v.Murphy, 1 Duer, 233; S.C., 1 Kern., 416, 419, per DENIO, J.; 1 Greenl. Ev., § 102; Aveson v. Kinnard, 6 East, 188; Bacon v. Charlton, 6 Cush., 581.)

But as the fact of plaintiff's suffering from those causes was distinctly proved and not controverted, no harm could have resulted from the evidence, if not strictly admissible.

In my opinion, the judgment should be affirmed.

DENIO, Ch. J., WRIGHT, PORTER and BROWN, JJ., concurred in affirming the judgment. DAVIES and CAMPBELL, JJ., dissented. POTTER, J., took no part in the discussion.

PREFERENCES ON THE CALENDAR. In 1865 it was enacted that "actions in which executors and administrators are sole plaintiffs or sole defendants, and in which the appeal prevents the issuing of letters testamentary or of general administration, shall have preference in the Court of Appeals, and in the Supreme Court, at the General Term thereof, over all actions, except in criminal cases in which the people are a party, and may be moved out of their order on the Calendar upon notice of an intent so to do." (Laws 1865, ch. 218, § 1.)

The question of the construction of this act coming up at the call of the Calendar, the court determined that the only effect thereof is to allow cases in which the people are a party to have a preference, if moved, over those where executors and administrators are sole plaintiffs or defendants, and over those in which the appeal prevents the issuing of letters testamentary and of general administration. That the cases on the calendar would be called as printed.

JUNE 14, 1865.