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'of the said Order of Affirmance of the said Appellate Division and from each and every part of the Judgment of Affirmance entered thereon, as well as from the whole thereof.
Dated, New York, December 27th, 1927.
JOSEPH F. KEANY,
Attorney for Defendant-Appellant,
MATTHEW W. WOOD, Esq., Attorney for Plaintiff-Respondent, 233 Broadway,
Borough of Manhattan,
New York City.
WILLIAM E. KELLY, Esq.,
County Clerk of the County of Kings,
ORDER OF AFFIRMANCE.
At a Term of the Appellate Division of the Supreme
The above named LONG LSLAND RAILROAD COMPANY, the defendant in this action, having appealed to the Appellate Division of the
Supreme Court from a judgment of the Supreme Court entered in the office of the Clerk of the County of Kings on the 31st day of May, 1927, and from an order made by said Court denying a motion for a new trial herein, and the said appeal having been argued by Mr. William McNamara, of Counsel for the appellant, and argued by Mr. Matthew W. Wood, of Counsel for the respondent, and due deliberation having been had thereon,
IT IS ORDERED AND ADJUDGED that the judgment and order so appealed from be and the same are hereby affirmed, and that the respondent recover of the appellant the costs of this appeal. Opinion by Seeger, J. Hagarty and Carswell, JJ. concur. Lazansky, P.J. and Young, J. dissent.
JUDGMENT of the 16th day of December, 1927.
The appeal taken by the defendant in the above entitled action having been heard at an Appellate Division of the Supreme Court, held in and for the Second Judicial Department, on the 21st day of October, 1927, and an order having been made and entered affirming the judgment of the Supreme Court, Kings County, entered in said action on the 31st day of May, 1927, in the office of the Clerk of the County of Kings, with costs of said appeal to the respondent.
Now, on motion of MATTHEW W. WOOD, Esq., Attorney for the plaintiff-respondent, it is hereby
ADJUDGED that the said judgment appealed from be and the same is hereby wholly affirmed, and that the respondent recover from and
against the appellant, LONG ISLAND RAILROAD COMPANY, the sum of One hundred and 28/100 dollars ($100.28) costs of said appeal.
WILLIAM E. KELLY,
MEMORANDUM HANDED DOWN BY APPELLATE
Helen Palsgraf, respondent, v. The Long Island Railroad Company, appellant.
Judgment and order affirmed, with costs. Opinion by Seeger, J., Hagarty and Carswell, JJ., concur. Lazansky, P. J., with whom Young, J., concurs, dissents and reads for reversal.
SUPREME COURT, APPELLATE DIVISION,
SECOND JUDICIAL DEPARTMENT.
LAZANSKY, P. J., YOUNG, HAGARTY, SEEGER AND CARSWELL, JJ.
THE LONG ISLAND RAILROAD COMPANY,
APPEAL by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the Clerk of the County of Kings on the 31st day of May, 1927, upon a verdict rendered by a jury; and from an order, entered in said clerk's office on the 27th day of May, 1927, denying defendant's motion for a new trial.
WILLIAM MCNAMARA, for the appellant.
The action was brought to recover damages resulting from negliThe plaintiff was a passenger intending to take a train of
1 Reported in 222 App. Div. 166 (N. Y. 1927).
the defendant at the defendant's East New York passenger station, on the 24th day of August, 1924. While plaintiff was at the station waiting for her train, another train came into the station. After this train had started from the station, two young men came up and undertook to board it while the train was in motion. One of these men had a bundle under his arm. Two of the defendant's employees undertook to help him on the train while it was in motion, one of them the trainman and the other the man on the platform. During their efforts to assist the man on to the moving train these men knocked the bundle out from under the passenger's arm and it fell under the train. The bundle contained explosive fireworks which exploded and caused a large scale, near which the plaintiff was standing, to be thrown against the plaintiff, severely injuring her. There was no evidence to show that the passenger carrying the bundle had any authority or permit under the Greater New York Charter to carry or transport fireworks, or of the value of the fireworks, and it does not appear that the provisions of the Charter were violated. (§ 92 of Article 6, subd. 6, Greater New York Charter.)
The defendant contends that the accident was not caused by the negligence of the defendant.
The sole question of defendant's negligence submitted to the jury was whether the defendant's employees were "careless and negligent in the way they handled this particular passenger after he came upon the platform and while he was boarding the train." This question of negligence was submitted to the jury by a fair and impartial charge and the verdict was supported by the evidence. The jury might well find that the act of the passenger in undertaking to board a moving train was negligent, and that the acts of the defendant's employees in assisting him while engaged in that negligent act were also negligent. Instead of aiding or assisting the passenger engaged in such an act, they might better have discouraged and warned him not to board the moving train. It is quite probable that without their assistance the passenger might have succeeded in boarding the train and no accident would have happened, or without the assistance of these employees the passenger might have desisted in his efforts to board the train. In any event, the acts of defendant's employees, which the jury found to be negligent, caused the bundle to be thrown under the train and to explode. It is no answer or defense to these negligent acts to say that the defendant's employees were not chargeable with notice that the passenger's bundle contained an explosive. While there seems to be no precedent for this case, every case must stand upon its own facts. In principle the case is similar to the squib case (Scott v. Shepherd, 2 Wm. Bl. 892), where a lighted squib was thrown in or near a crowd of people, and it was successively thrown by two or more persons until it landed upon and burned the plaintiff;
or the negro boy case (Vanderburgh v. Truax, 4 Denio, 464), where a boy in escaping a threatened attack of the party pursuing him ran against and knocked out the faucet of a cask of valuable wine, destroying it. The pursuing party was held liable for the loss. Also the balloon case (Guille v. Swan, 19 John. 381), where the defendant, while in a balloon, descended in a. garden under circumstances which tended to invite people to go to his assistance and in doing so the vegetables in plaintiff's garden were trampled upon and destroyed, for which the defendant was held liable.
It must be remembered that the plaintiff was a passenger of the defendant and entitled to have the defendant exercise the highest degree of care required of common carriers.
The judgment and order appealed from should be affirmed, with costs.
LAZANSKY, P. J. (dissenting);
The facts may have warranted the jury in finding the defendant's agents were negligent in assisting a passenger in boarding a moving train in view of the fact that a door of the train should have been closed before the train started, which would have prevented the passenger making the attempt. There was also warrant for a finding by the jury that as a result of the negligence of the defendant a package thrown between the platform and train exploded, causing injury to plaintiff, who was on the station platform. In my opinion, the negligence of defendant was not a proximate cause of the injuries to plaintiff. Between the negligence of defendant and the injuries, there intervened the negligence of the passenger carrying the package containing an explosive. This was an independent, and not a concurring act of negligence. The explosion was not reasonably probable as a result of defendant's act of negligence. The negligence of defendant was not a likely or natural cause of the explosion, since the latter was such an unusual occurrence. Defendant's negligence was a cause of plaintiff's injury, but too remote.
The judgment should be reversed, with costs to the appellant, and complaint dismissed, with costs.
STIPULATION WAIVING CERTIFICATION.
Pursuant to Section 170 of the Civil Practice Act, it is hereby stipulated that the foregoing case contains true copies of the notice of appeal to the Court of Appeals, the judgment and order of affirmance, the opinion of the Appellate Division of the Supreme Court, Second Department, and remittitur or record upon which the court below acted in making said judgment and order of affirmance,