Thorpe v. New York Central & Hudson River Railroad

It was submitted to tbe jury to find, (1) whether the cars were-in such rapid motion as to render it unsafe and imprudent for the porter of the Wagner car to remove the plaintiff from that car to another in the rear; (2) whether, for this reason, the plaintiff was justified in refusing to pass back into the other car; (3) whether, if the porter was right in forcibly removing the plaintiff from the Wagner car, he did not use more force than was necessary for that purpose. To have given the plaintiff a verdict the jury must have found, either that it was unsafe to pass from one car to another while the cars were in motion, or that the porter used excessive force. In either event the cause of action against some one was established. It was also submitted to the jury to find whether the plaintiff was a trespasser or wrongfully in the Wagner car. That fact may have been of importance in getting at the amount of damages, but I think it was not material in respect to the right of recovery. Even if plaintiff had been a trespasser in the Wagner ear the porter could not remove him from the car in a dangerous and unsafe manner or use excessive force. (Rounds v. Del., Lack. and W. R. R. Co., 64 N. Y., 129.)

The jury has determined that the removal of plaintiff from the Wagner car at the time and under the circumstances and in the manner was wrongful. A cause of action is found to exist in favor of the plaintiff. Is it against the defendant ? If the porter had been defendant’s servant no reasonable doubt could exist as to its liability under the facts proved. (Rounds v. D., L. and W., ante; Cosgrove v. Ogden, 49 N. Y., 255; Jackson v. Second Avenue R. R. Co., 47 id., 274.) It may well be that Wagner is liable; of that we need not now consider.

The legislature of this State has given to the defendant certain franchises. It cannot divest itself of its responsibility under the laws for the proper exercise of its duties. The arrangement between the defendant and Wagner was private and personal. When Wagner’s car was put into the train it became a part of defendant’s train, was under the control of its conductor, was in his care and custody. The defendant and not Wagner ran the train. In effect Wagner, by his agreement, supplied the defendant with certain cars to be used for the joint interest of Wagner and *75defendant. Tlie Wagner cars were run for joint account. Why, then, are not Wagner’s servants in these drawing-room cars also the servants of defendant ? Why shall not the defendant be held responsible for the wrongful act of Wagner or his agents while upon its road and under its control % The Illinois Central Railroad was held liable for an injury to one of its own passengers on its own road, caused by the fault of a train of the Michigan Central Raih’oad running on the same road by the owner’s permission. (Railroad Co. v. Barron, 5 Wall. [U. S]., 90, 104, and authorities cited.) Drawing-room cars, under a contract like that in evidence in this case, were seized for taxes against the company owning the road but not the cars. (Kennedy v. St. Louis, etc., R. R. Co., 62 Ill., 395; 7 Am. Railway Cases, 346.) The owner of a road was held responsible for the use of a patented improvement on cars run on its road, though another road held all its stock, provided the cars and worked the road under a special contract. (York, etc., R. R. Co. v. Winans, 17 How. [U. S.], 30, especially top of page 40; see, also, Railroad Co. v. Brown, 17 Wall. [U. S.], 445, 450, 451; 1 Redf. Law of Railways, chap. 22, § 1, p. 598; Macon and Augusta R. R. Co. v. Mayes, 49 Georgia, 355.)

From the authorities cited we are led to the conclusion that the defendant was liable for the acts of the porter of the Wagner car, to the same extent as if he had been hired by, and was in the immediate employment of, the defendant.

The learned justice charged the jury, in substance, that plaintiff-was bound to occupy a vacant seat in the common car, if there was one, but if there was none he had the right to enter the drawing-room car. To the latter part of this proposition the defendant excepted.

The correctness of this charge is only of importance upon the amount of damages, and the same is true of the refusal to charge to be hereafter noticed. Perhaps even in that respect it may not be material whether the plaintiff was rightfully in the Wagner car or not. He was on defendant’s train. He was entitled to a seat. He takes the first he finds, as the jury, by its verdict, says. When requested to pay the extra twenty-five cents he notified the porter that there were no vacant seats in the other cars, and that he would go in there as soon as he could get a seat. I think the *76charge, under the facts, was correct. If so it was also correct to refuse to charge that it was the plaintiff’s duty to ask the conductor for a seat before passing into the drawing-room car. The fact is evident that there were not seats enough in the ordinary cars for the passengei’s therein, and that the conductor could not give seats to all. The jury, by its verdict, has so found. There is evidence to sustain such finding. This appeal is from the judgment alone. Every fact found by the jury against the defendant is conclusive. The defendant’s jnoposition, then, is that the plaintiff should have asked the conductor for a seat when there was none to his knowledge vacant, and that a failure to do this made plaintiff a trespasser in going into the Wagner car. I think he was wrongfully there only when he refused, upon demand, to pay the extra fare, and unreasonably declined to leave the car.

These are all the questions presented for consideration, and the reasons above given lead to an affirmance of the judgment, with costs. '

(dissenting):

I do not think the porter on the Wagner car was defendant’s servant; nor that the contract establishes it any more than a percentage to a salesman by way of salary makes him a partner.

Judgment affirmed, with costs.