Brown v. New York Central Rail Road

By the Court, Johnson, J.

It is insisted by the defendant’s counsel, that the carelessness of the stage driver contributed to the injury sustained by the plaintiff, and that the case, on this point, is so clear, upon all the evidence, that it ought not to have been submitted to the jury, but should have been determined by the court, as a question of law.

The plaintiff's counsel contends that the plaintiff is in no respect responsible for the carelessness of the driver of the) stage, in which she was riding at the time of the injury, it be- ! ing a public conveyance for all persons, and the plaintiff only; an ordinary passenger. To sustain this position the counsel refers us to the case of Knapp v. Dagg, (18 How. Pr. R. 165.) That was a private carriage, in which the plaintiff was riding with her brother, and the judge at the circuit held that she was not chargeable with the negligence of the driver, with whom she was riding. It must be admitted that that was a stronger case against the plaintiff than this, where the driver was exercising a public employment as a carrier of passengers. But that was a decision upon a trial at the circuit, and is not entitled to any great weight as an authority. And with all respect, I am entirely satisfied that the decision is not law., This question, of passengers who have received injuries while traveling in public conveyances, such as omnibuses and vessels, being chargeable with the negligence of the persons in charge of such conveyances, in actions brought by them to recover for such injuries, was very fully and thoroughly discussed, by the ablest counsel, before the common bench, in England, in the cases of Thorogood v. Thorogood and Catlin v. Hills, (65 E. C. L. 114,) and the judges unanimously held that the passenger bringing the action against the proprietors of the other carriage, or vessel, which directly caused the injury, was chargeable with the negligence of the person in charge.of the conveyance in which he was riding, the same as though it were his own. The principle seems to be, that the passenger having selected his conveyance, and entered into a contract with the owner, to convey him safely, has a remedy against such-owner, for any injury occasioned by the negligence of his servant, in managing and conducting such conveyance, and must take the consequences of any default of the servant or driver whom he thought fit to trust, as to all injuries, from other persons, during the passage. (See also the case of Briggs v. The Grand Junction Railway Co., 3 M. & W. 244.) The judge at the circuit, however, placed the case in this respect, upon the true ground, and charged the jury that the negligence of the driver, if any, must be regarded, for all the purposes of the action, as the negligence of the plaintiff.

The only question is, whether upon the whole evidence it was so clear that the negligence of the driver contributed to the injury, that the case ought not to have been submitted to the jury. In view of all the facts and circumstances proved upon the trial, I am of the opinion that it was a proper case-to be passed upon by a jury. It is not every case of negligence on the part of a plaintiff, which will preclude him from recovering for an injury occasioned by the negligence of the defendant. To have that effect, his negligence must be such that he might, with ordinary care, have avoided the consequences of the defendant’s negligence. It is true that a person crossing a railway track is bound to use his eyes, and ears, to discover and avoid danger; and if he fails to do this, and receives an injury which he might otherwise have avoided, he will not be allowed to recover.

[Cayuga General Term, June 4, 1860.

But here, it is apparent that the driver was on the lookout. He first stopped to let the engine and train pass, and then started and stopped again to let a detached car which had been switched off pass, before approaching the track. He then started again, supposing only one car had been switched off, and got so near the track that the heads of the horses were over the rail, when he saw the other cars coming, which had also been detached from the train, about two rods distant. Under these circumstances I think it was a fair question for the jury, whether the driver exercised ordinary care and prudence, in starting his team the second time, after the single detached car had passed, without waiting to ascertain whether other cars had not also been detached, and were coming behind the single car; and also the question whether the driver used ordinary care and prudence, in attempting to cross the track, after he saw the cars, which immediately caused the injury, approaching. Every one knows that the most careful and experienced driver has not the same immediate control over the motions and speed of his team, however safe and manageable, that a footman has over his own, when approaching a railway track, where trains are likely to pass. The driver whose attention is necessarily more or less directed to his team, has not the same opportunity to observe every thing which may be approaching. And it is quite obvious that in a given position it might be the height of care and prudence, in a driver, to attempt to cross with his team, when it would be inexcusable negligence and rashness in a footman to do so. All these were questions of fact which were submitted to the jury, as appears from the case, with great care and fairness; and as we think it was not a case for a nonsuit, a new trial must be denied.

Smith, Knox and Johnson, Justices.]