The principal questions in this case are those usually arising in actions founded on negligence, to wit, first, was the injury of which the plaintiff complains, occasioned by the negligence of the defendant or its servants.? and secondly, is the plaintiff chargeable with negligence which contributed to the injury?
It cannot be seriously questioned that the evidence warranted the jury in finding negligence on the part of the defendants. In the first place, it was fairly to be inferred from the testimony, that the pieces of wood or timber, by which the cars were thrown from the track, were dropped from another train belonging to the defendant, which had passed over the track a short time previously, and was loaded in part with such pieces of timber. In the next place it was a question whether the person having charge of the engine, could not and ought not to have seen the obstruction on the track in front of him, in time to have checked the speed of the train, and prevented the disastrous collision which ensued. It was also a question whether the servants of the company in charge of the road and of the trains, could not and ought not, either to have prevented the falling of the sticks of timber from the train while in motion, or to have removed them from the track, or to have discovered them there, and warned an approaching train in season to have prevented *Page 679 any injurious consequences. If the defendants were at fault in either of these respects, they were chargeable with negligence. It is the duty of a carrier to exercise the highest degree of human foresight and skill to provide for the safety of his passengers. Under the circumstances of the present case, the questions whether the defendant's employés exercised a proper degree of diligence and caution, belonged to the jury and were properly submitted to them by the court.
The wisdom of the time-honored rule of the common law which refers questions of fact to the jurors, and questions of law to the judge, is not more conspicuous in any class of civil cases, than in those which involve questions of negligence. Cases of that nature frequently come before the courts, in which men of equal intelligence and judgment differ in their conclusions, simply because they differ in experience and habits, in temperament or mental organization. A course of conduct which seems sufficiently careful to a self-reliant man who is accustomed to act promptly, may appear reckless to one who is unusually circumspect or hesitating. That average judgment which is the result of the deliberations of twelve men of ordinary sense and experience, is recognized by our jury system as a juster standard than the judgment of one man of equal experience and sense, in the determination of questions of fact, and it is especially valuable in the decision of questions of negligence. On the trial of an issue of that nature, if there is any doubt, however slight, either as to what facts are established by the testimony, or as to the conclusion in respect to the fact of negligence that may be drawn legitimately from the circumstances proved by the average of men of common sense, ordinary experience and fair intentions, the case should not be taken from the jury. It is only where the case is entirely clear upon the testimony, where there is no room for rational doubt, either as to the circumstances proved, or as to the conclusions of fact which may properly be drawn from them, that a judge is justified in deciding a question of negligence as matter of law. In the present case the court properly submitted the question of the defendant's negligence to the jury and their *Page 680 finding upon that branch of the case, is fully authorized by the testimony, and is conclusive.
The other branch of the case although equally free from difficulty, requires a more extended examination. As the plaintiff was standing on the platform of the car on which he was riding at the time of the accident, the question arises whether by reason of that circumstance he is chargeable with contributory negligence which precludes him from recovering damages for the injury to himself.
The testimony on the part of the plaintiff tended to show that when the train arrived at the Hempstead station, the plaintiff and his son immediately carried their trunk from the platform on which it was standing, and on which baggage awaiting the cars was usually placed, to the baggage car, they discovering no employé of the company to perform that service; that before the baggage master received it and gave a check for it; the train was in motion; that as soon as they obtained the check they got upon the front platform of the first passenger car while it was in motion; that they immediately went inside the car to look for seats, and found they were all occupied; that there were three ladies in the passage way of the car looking for seats and coming toward them; that the plaintiff and his son then went out again to the front platform; that while they were there the conductor came out of the baggage car and took their fare; that soon after he left them the plaintiff's son went inside the passenger car, and stood leaning against the door, and the plaintiff remained outside on the platform; and that, in a few minutes thereafter, and while they were in those positions, the train was suddenly stopped by coming in contact with the sticks of timber or poles lying across the track, the baggage car and the front passenger car were driven against each other with great violence, and the injuries were inflicted of which the plaintiff complains. The facts above stated were established by the verdict. In addition to them, the testimony on the part of the defendants tended to show that the train consisted of six passenger cars; that several of the cars in rear of that on which the plaintiff and his son were riding there were *Page 681 vacant seats; that in the car which the plaintiff entered, one whole seat, or a seat for two, was occupied by a single male passenger, who was reclining thereon, and another whole seat was taken up with parcels belonging to passengers; and that a notice that passengers must not ride on the platform was posted in a conspicuous place inside each of the cars.
Upon this state of facts, it seems clear that the circumstance that the plaintiff was standing on the platform when he was injured, does not constitute a defense to the action, either under the statute of 1850 (Laws of 1850, p. 234, ch. 149, § 46), or independently of the statute.
The provision of the statute is in these words: "In case any passenger on any railroad shall be injured while on the platform of a car, or on any baggage, wood or freight car, in violation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury, provided said company, at the time, furnished room inside its passenger cars sufficient for the proper accommodation of the passengers."
The proviso contained in the section above transcribed, was not complied with by the defendants in the present case. "Room inside the cars sufficient for the proper accommodation of passengers," means a seat for each passenger; not standing room in the passage way. It means too, a vacant seat; not one occupied by another passenger, either with his person or his luggage, although so occupied improperly; and the seat must be furnishedby the company, so that if it be improperly occupied in a manner to exclude those seeking seats, the incumbrance must be removed by the conductor or other employé of the company, and not by the passenger seeking proper accommodation. It may be assumed, as suggested by the defendant's counsel, that a courteous person thus occupying a seat would surrender it, on request, or indeed without request, on seeing the need of his fellow passenger, but the question is not what civility would dictate in such a case, but what are the rights and obligations which the law will recognize and enforce. A passenger entering a *Page 682 car, has no means of knowing whether a seat filled with luggage, or a whole seat taken up by one person is thus occupied rightfully or not. In either case the seat may belong to some one on the train who is not sitting in it at that moment. No rule should be laid down by the courts which will compel a passenger seeking a seat to assume the risk of trespassing on the rights of another, or of engaging in a personal controversy, or perhaps a forcible collision with a prior occupant, in order to get possession of a seat, or to keep it after he has obtained it. Nor should he be forced to ask as a favor from the courtesy of a fellow passenger that which is due to him from the company as a right. There is not the slightest necessity for subjecting passengers to annoyances of this description; the conductor can easily prevent them. He knows whether a seat in his train which is taken up in the manner above stated, is properly occupied or not; and he has authority to displace an improper occupant. The management of the train is in his hands, and a faithful discharge of his duty to his employers involves the performance of certain obligations to each passenger under his care. It is as much his duty, as the agent of the company, to see that each passenger is furnished with a proper seat, as it is to require him to pay his fare. In this case, the conductor received the plaintiff's fare while he stood on the platform, but did not object to his occupying that position, nor make any effort to furnish him with a seat inside.
Standing room in the passage way is not proper accommodation for passengers. That part of the car is just what its name indicates, a way through the car. Each passenger seated in the car has a right to pass along the way at any and all times, and he, therefore, has a right to insist that it shall be at all times open and unobstructed. The company can not rightfully compel a passenger to stand in it, instead of furnishing him with a seat, and even if he consents to do so, they have no right to place him there as against the passengers who are seated.
The defendant's counsel has argued that the proviso of the statutes was complied with, since there were vacant seats *Page 683 in several of the cars in the rear of that which the plaintiff and his son entered. But the plaintiff was not obliged to incur the peril of passing from one car to another, while the train was in motion. If the train had stopped before the accident long enough to give him an opportunity to go into a car where there were vacant seats in which he and his son could have been accommodated, and he had neglected to do so, there would have been force in this position of the defendant's counsel.
It was the fault of the company and not of the plaintiff that he was on the platform when he was injured. He was there, simply because the company had not furnished proper accommodation for him inside of the car, and for that reason the company cannot avail themselves of the statute.
The foregoing reasoning is equally decisive of the case, if it be considered independently of the statute. So far as the statute recognizes an obligation on the part of railroad companies to furnish their passengers with proper seats inside of their cars, it simply affirms a principle of the common law, and enforces a duty springing from their relations as carriers of passengers, and their undertaking with each passenger to transport him safely and properly over their road. As the defendant in the present case neglected that duty, and the plaintiff rode on the platform because the company did not provide him with suitable and reasonable accommodation within the cars, the circumstance of his being in that position when he was injured does not relieve the defendant from liability. The case bears no analogy to that of a passenger, who, being furnished with suitable accommodation inside the car, unnecessarily and heedlessly protrudes his head or arm from the car window, and in consequence receives an injury.
The views above expressed meet all the questions in the case which merit attention, and as the judgment appealed from is in accordance with them, it should be affirmed.
All the judges concurring,
Judgment affirmed.
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