Opinion
June Term, 1868
J.H. Reynolds, for the appellants.
M.I. Townsend, for the respondent.
The plaintiff was properly in the cars of the Hudson and Boston Railroad company, on his way to Chatham. It is not pretended, that he was guilty of any personal negligence, or that it was in his power, by any means, or in any degree, to have prevented the collision by which he was injured. Like every passenger in a train of cars propelled by steam, he was passive in the hands of the railroad company; unable to aid, if aid was useful, unable to delay or to hasten a train, incompetent, and not permitted, to regulate or examine its machinery. His personal safety was exclusively under the control of others. Of the company to whose care he had intrusted himself, he was entitled to ask the very highest degree of care and attention. Of all others, that ordinary care which all prudent people are bound to bestow in the management of their affairs. The jury have found, that the defendants were deficient in the use of such care, and I see no reason why they should not respond in damages. The "imputation" to the plaintiff of the negligence of another is based upon no sound principle. The fact, that the Boston road was also guilty of negligence, furnishes, in law or morals, no excuse for the negligence of the Hudson River company, and no reason why they should not respond in damages. ( Sheridan v. Brooklyn and H.R.R. Co., 36 N.Y. 39.)
In Chapman v. The New Haven R.R. Co. ( 19 N.Y. 341), and in Colegrove v. The Harlem N.H.R.R. Co. (20 id. 592, the question now before us was distinctly presented, and in each case was decided in favor of the plaintiff. In the case of Brown v. N.Y.C.R.R. Co. ( 32 N.Y. 597), the question was somewhat discussed, but it did not exist in the case. There, the justice at the circuit had charged, that the plaintiff was responsible for the negligence of the driver of the stage in which she was riding, and the jury had found that there was no negligence on the part of the driver. The question of imputed negligence could not, therefore, have been decided in that case. The case of Thoroughgood v. Bryan (8 Com. B. 115) was cited in several of the above cases. The facts in that case show a clear question of personal negligence to be submitted to the jury. Instead of waiting for the driver of the omnibus in which he was riding, to draw up to the sidewalk, and there to permit him to alight, as he had a right to require, the plaintiff got out in the crowded street, and was at once, or soon, struck by an approaching omnibus. If there was negligence, the plaintiff was the negligent party, although the driver of his omnibus may have been negligent also in not stopping at once, or in not driving to the sidewalk. This case is no authority for the decision of a case like the present.
Upon principle and authority, this case was rightly decided below, and the judgment should be affirmed.
Judgment affirmed.