Opinion
July, 1905.
I.R. Oeland [ George D. Yeomans with him on the brief], for the appellant.
Sanders Shanks, for the respondent.
The plaintiff was a passenger of the defendant, seated in one of its cars. A person undertaking to enter the car through the window in some manner undisclosed by the record kicked the plaintiff in the face, breaking his nose. It appeared that at the station where the accident occurred during rush hours people had frequently gained ingress to the cars by climbing through the windows, and it does not appear that the defendant took any measures to prevent the practice. One witness, an employee of the defendant, called by it, testified that he had seen people climbing in through the windows four or five times during the six months prior to the accident. The other employees at this station testified that they had never seen or heard of any one doing it. All testified that they had never heard of an accident from that cause.
At the close of the evidence the defendant moved for a direction of a verdict, whereupon the court asked the plaintiff's counsel if he joined in the motion, to which he replied: "I should prefer to go to the jury." The case was submitted to the jury in a charge free from error, to which no exception was taken. Two questions were submitted to the jury, first, whether the practice was so common that the defendant either knew or in the exercise of reasonable care should have known of it; and, second, if the defendant knew or should have known of it, whether, in the exercise of a reasonable degree of foresight, it should have foreseen the likelihood of injury to passengers from such a way of ingress; and upon a verdict being rendered in favor of the defendant, the court set it aside as against the weight of evidence. From the order setting aside the verdict this appeal is taken. On a former appeal to this court from a judgment entered upon a nonsuit, the judgment was reversed and it was held that a question of fact was presented for the jury. ( Grogan v. Brooklyn Heights R.R. Co., 97 App. Div. 413.)
The respondent urges that the evidence establishes negligence as matter of law, but having declined to accept the invitation of the court to join in the motion for a direction of a verdict, and having expressly requested to go to the jury, he cannot now be heard to say that the case should have been disposed of as one of law; and in any view it is clear that the evidence did present the two questions of fact which were clearly presented to the jury in the charge of the learned trial justice. Appellate courts properly exercise great caution in interfering with orders of the trial courts setting aside verdicts as against the weight of evidence, because the exercise of that power is frequently necessary to prevent injustice, and the trial court has the advantage of a personal observation of the witnesses to judge their credibility. In this case, however, there is no conflict in the testimony. The question is what inferences are to be drawn from the undisputed evidence, and the facts from which these inferences are to be drawn are contained in the record before us. The mere fact that the trial justice thought the jury drew the wrong inference did not warrant him in setting aside the verdict as against the weight of evidence in case the inference adopted by the jury was fairly warranted by the evidence. Where the facts are undisputed, unless reasonable minds could draw different inferences therefrom, the question should be disposed of as one of law, and it would seem, therefore, that the submission of the question to the jury involved a determination that reasonable minds might differ on the question. Reasonable minds might easily differ as to whether an ordinarily prudent person in the exercise of reasonable care should have apprehended that injury was likely to result to some passenger from the custom disclosed in this case. The learned justice before whom the case was first tried thought that there was not even a question for a jury and nonsuited the plaintiff; twelve jurors who were probably not predisposed to favor the defendant have said that the evidence does not warrant the inference of negligence. Unless the judgment of the court is to be substituted for that of the jury the verdict of the jury should be permitted to stand. The plaintiff had an opportunity to take the judgment of the court, but having determined to take his chances with the jury in a case which must be disposed of upon evidence from which reasonable men would be as likely to draw one inference as the other, he should be content with the verdict thus rendered.
The order should be reversed and the verdict reinstated, with costs.
BARTLETT and WOODWARD, JJ., concurred; HIRSCHBERG, P.J., and RICH, J., voted for modification of the order by requiring the plaintiff to pay within twenty days the costs of the trial and all disbursements in the action to the date of the order, and as modified for affirmance, without costs, upon the opinion of Mr. Justice DICKEY at Trial Term.
The following is the opinion of Mr. Justice DICKEY:
DICKEY, J.:
It seems to me that to allow the plaintiff to go out of court with a broken nose and with a bill of costs to pay without any redress would be a miscarriage of justice. He was in nowise at fault, but was sitting in his seat as a passenger when a person at the Thirty-sixth street station climbed through the window of the car head first and struck plaintiff a violent blow on the nose with his foot, because he was getting in the car by the window instead of the orderly way by the door. Such a way to gain access to cars carries with it, necessarily, some discomfort and damage to people already in the cars. The proof was that the railroad company permitted it from time to time, immediately before this occasion, without any effort to stop it while it was being done or after they knew it was being done. In this case it was done apparently in the sight of their one station man, without any hindrance on his part or on the part of any of the trainmen.
Defendant should be held to pay some damages. Unless there is some redress, such as by recoveries in actions of this kind, it will not be safe for people to ride on the cars at the times that crowds are allowed by the railroad company to gather at its station platforms and climb in windows.
The jury were undoubtedly influenced by the argument made by the attorney for the company that they were powerless to prevent such occurrences. The restrictions and limitations put on trial judges prevented me from saying to the jury what the company could do and should have done by way of preventing such occurrences — such as that the platform man should have caught the man who was going through the window by the heels and pulled him back on the platform and arrest him, if necessary, for his disorderly conduct, and, if one platform man was not sufficient to prevent it, the company should have had two or three men there for that purpose, even if it involved some expenditure on their part for the comfort and safety of their passengers. The work and duty of this company does not begin and end with the collection of the passenger's fare. There is ample provision made by the company to collect fares, so that no one can ride on their cars without paying his fare, and steps are taken to see that the conductors turn over all the money received, by having the necessary inspection and oversight of the conductors by men paid for that purpose, and, in paying fares, it is regulated that the passengers all go through the same gates in an orderly respectable way. If the same earnest, reasonable effort is made with sufficient men to protect passengers from insult and injury. I see no reason why it should not be equally effective to accomplish the result. I fear that in the anxiety to get every nickel the duty owing to the passengers is overlooked. The company owes passengers the duty of regulation and protection. If the company would furnish sufficient cars, so that every passenger would be provided with a seat, there would be no need for any wild scramble to secure the limited number of seats provided. Other railroads prevent passengers from getting in by windows; in fact they are so well managed that no one attempts it.
The proof was clear that the getting in at the windows had happened several times before this time at this same station, and the platform man admitted that he had seen it occur a few times in the few months he had been employed in his one-half day tour of duty. The other witnesses for the defendant were not so situated that they could see what was going on at this station platform, as the ticket office there is below the platform.
The verdict is set aside and a new trial granted before another jury because it is against the weight of evidence and because the interests of the public require it.
Order reversed, with costs, and verdict reinstated, with costs.