author: Peckham, J.

text:
    Stacia Cullen, Adm’rx, Resp’t, v. Frederick O. Norton, App’lt.

      (Court of Appeals,

      Filed March 10, 1891.)

    1. Master and servant—Negligence.
    One Doran, a superintendent in the employ of defendant, after placing plaintiff’s intestate at work in a cement quarry, negligently i r improperly placed others at work drilling near a hole of a blast in which the powder had not exploded, a; d in consequence plaintiff’s intestate was injured. Meld, that Doran in placing deceased at work where he did acted in his capacity as an employe and not as a representative of the master, and that the latter was not liable for his negligence.
    3. Same.
    Where a master has provided a competent and experienced foreman, who has been in his employment a number of years, he is not chargeable ' with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow-servant.
    (Huger, Oh. J., and O'Brien, J., dissent.)
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff, entered upon a verdict upon trial at circuit.

      J. Newton Fiero, for app’lt; David M. De Witt, for resp’t

       Reversing 20 N. Y. State Rep., 700.

   Peckham, J.

Assuming Doran to have been negligent, is the evidence in the case of such a nature as to defendant was responsible for it, or was the negligence that of a fellow-servant of the intestate ? I think it was the latter. A master is bound to furnish reasonably safe and suitable implements for the use of the servant and a reasonably safe place of employment, considering the nature of the employment itself. There is very little room for disagreement as to the principles of law in this class of cases, but the difficulty lies in their application to the facts of each special case.

Did the defendant discharge this duty of furnishing, in the first instance, a reasonably safe place for the servant to do his work ? The place was a cement quarry, and the work had proceeded so far that the business had to be conducted by blasting. To blast at all is to encounter some danger, and hence in this case all the danger incident to the working of the quarry, under conditions requiring frequent blasts, the workman took the risk of when he accepted employment in the quarry.

The danger of accident from the negligence of a fellow-workman is part of the risk assumed. The master was liable for the act of Doran in placing the deceased at work where he did, provided such act was of a character which the master was required to perform as master. This is the principle decided in Crispin v. Babbitt, 81 N. Y., 516, and it has never been receded from in this court. If Doran acted as master the defendant is liable, while if he. acted in his capacity as an employe, and not as a representative of the master, his negligence does not rest upon the master.

The quarry was the place where the work was to go on, and the master was bound to make it a reasonably safe place for such work, considering its character and the necessarily dangerous .nature of the work itself. For the manner in which the persons employed in the quarry should themselves perform the work, the master was not liable. It is not claimed that the master did not furnish a proper place to work in in the first instance; that is, when the deceased was employed the quarry was as safe as any quarry is where frequent blasts are being fired off. But the manner of the performance of each of the various details of the work by which, as a whole, it was to be conducted, rested necessarily upon the intelligence and care and fidelity of the servants to whom these duties were entrusted.

It can’t be that every time a blast was exploded and the men came back the manner of their distribution for work was a duty of the master, and that the order of a foreman, mistakenly or negligently given, must be regarded as the order of the master in filling a duty to furnish a safe place to work in. It is, as it seems to me, a detail of the working or management of the business, the risks attending which have been assumed by the party taking employment.

The ease of Pantzar v. The Tilly Foster Iron Co., 99 N. Y., 368, was entirely different. The master was there held liable because, through the superintendent, it placed the plaintiff in a position of danger, not necessarily connected with or part of the conduct of the general work itself for which' plaintiff was employed, and which danger was not caused by any negligent act or omission of a fellow servant The plaintiff, while working in the pit of the mine, was injured by the fall of a mass of rock from an overhanging cliff, not caused, by the negligence of any workman and not a natural or necessary part of the danger arising from the working of the mine itself. The superintendent and. foreman had been warned of the danger before the plaintiff went to work at the place where he was injured, and they took no precautions to support the rock while the men were at work under it, although it was entirely practicable to do so. We held in such case the master failed to furnish a reasonably safe place to the plaintiff to continue his work.

In this case it is the ordinary one of choosing a method, a time and a place for continuing the work in the quarry, and this involved questions of judgment and discretion committed in this instance, it would seem, to Doran. He, it may be conceded, mismanaged or misjudged the matter, and after placing the deceased at work, negligently or improperly placed others at work too near the hole in which the powder had not exploded, and the consequence was this most unfortunate accident. The accident resulted from a negligent act done in the very course of the work, and by one of the fellow workmen of the deceased. The negligent act was a part performance of the work itself, the risks of which the deceased had assumed. The master had provided a competent and experienced foreman, who had been in his employment a number of years, and he was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow servant, Hussey v. Coger, 112 N. Y., 614-618; 21 N. Y. State Rep., 848, although that fellow servant happened to be the foreman.

The case of Tendrup v. The Stephenson Co. (Limited) decided in this court in 121 N. Y, 681; 31 N. Y. State Rep., 993, without an opinion, was a very close one, a border case so to speak, and not one which should be amplified in the slightest degree. The idea upon which its affirmance was founded in this court was that the ladder leading from an upper to a lower part of the place where the plaintiff was working was never sufficiently fastened down to make the place a safe one to work in, because of the readiness with which it could be removed without noise or notice. Hence it could be said the master had failed to furnish at all a safe place to work in.

The case of Franz v. Long Island Railway Co., 123 N. Y, 1: 33 N. Y. State Rep., 46, is not in point. There the trench was to be dug by others, and in it the plaintiff was to go .for the purpose of cleaning out certain water pipes. The defendant owed a duty to see to it that the place the plaintiff was sent to work in should be reasonably safe. Here the decedent and the other men in the •quarry were engaged therein, and by their blasting they were continually changing the conditions of the quarry, and its dangerous conditions were added to by the negligence of this foreman in ■carrying out the general purpose and design of the work in which they were all engaged, and he acted therein as a fellow workman and not as master or in place of the master.

In McGovern v. Railroad, 123 N. Y., 280; 33 N. Y. State Rep., 416, the decedent was sent into the bin to discover why it was that the grain had ceased to flow through the hopper at the bottom of the bin and where the difficulty was. It was known that there was a tendency in grain to heat, and when heated it would sometimes stick to the sides of the bin and cease to run out When this was the case it was dangerous to attempt to enter the bin from the trap door in the bottom, as the grain might be detached, fall down, close the trap door and smother any one in the bin. The work could have been done from the top of the bin without danger. .This court held there was evidence to go to the jury on the question. whether the defendant had discharged the duty which it owed its servants, and whether it was not negligent in ordering its servants to enter a place obviously dangerous without first making proper inspection. Under the circumstances the place (the bin) was obviously dangerous to enter at all from below and its danger did not in any way depend upon the manner in which the work should be conducted by fellow servants after they entered the bin. The danger consisted in entering it at all through this trap door.

The court said it was the duty of the master to adopt all reasonable precautions to shield the servant from the danger he might be exposed to in the place assigned him for labor before requiring him to occupy it. This remark was made in reference to ordering him to enter an obviously dangerous place through this trap door, and when it was not at all necessary to enter from below. It was not at all dangerous unless there was grain in the bin, and then it was dangerous only for the time being and because of the known habit of the grain to heat and stick to the sides of the bin. It seems plain that the risk thus run by the decedent was no necessary, natural or usual part of the general business which he was employed to do and the risks of which he assumed when he entered the defendant’s employment. The danger did not arise out of the prosecution of his work or the prosecution of the work of his fellow workmen, and hence when ordered to go into a place, which was only made dangerous from this temporary cause and which was entirely disconnected with the ordinary prosecution of his work, it was an order from the master to occupy a place of danger which the jury might say he had not sufficiently, that is, reasonably guarded against, and for the injuries resulting from which the master should be held liable. The case at bar is not similar in these respects. The facts. already recited show the difference, and hence the McGovern case does not apply.

The case of Hogan v. Henderson (just decided by this court) 35 N. Y. State Rep., 870, is the latest example of the application of the law relating to master and servant in this particular. The defendant had been held liable below because of his alleged failure to furnish as master a reasonably safe place for the servants to do their work. We held that the place which the master furnished was the ship itself, constructed in the usual way, and which became unsafe not by reason of any careless or negligent plan or manner of construction, but solely from the way in which the longshoremen did their work. The inj ury, it was said, happened, not from any inadequate supply of boards to build the “ stool,” but from the negligent manner in which the workmen used them, and we reversed the judgment against the defendant.

So in the. case at bar. The master furnished the mine as a place for labor, and it was solely on account of the manner in which the foreman, a fellow-servant, performed, the work or directed it that the accident happened, and happened in the course of the performance of the very kind and character of work which the plaintiff’s intestate took the risk of by accepting employment. I think this case comes within the clear principle of the Crispin and Babbitt cases, supra, which remains in full vigor and life in this court. _ The same principle has been lately reiterated in Loughlin v. State of New York, 105 N. Y., 159; 6 N. Y. State Rep., 826.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur, except Buger, Oh. J., and O’Brien, J., dissenting.


source: Caselaw Access Project

license: Public Domain

text:
    Elias Bach et al., App’lts, v. Simon Tuch, Assignee, Resp’t.

      (Court of Appeals,

      Filed March 10, 1891.)

    1. Sale—Rescission on ground of fraud—Election of remedies.
    Plaintiffs first brought an action in which they sought an attachment, ritifying the sale of certain goods to defendant's assignor, but ignoring the credit given on the ground of their being obtained by fraud, and seeking to recover the purchase price of the property sold. The attachment being subsequently set aside, the suit was discontinued and this action begun, which repudiates the sale, claims the title- and ownership of the goods themselves and seeks their recovery in specie. Meld, that the plaint-ms made an election which ratified the sale of the goods to the assignor, and consequently cannot now maintain an action based upon the assumption that they still own the property.
    3. Same.
    Where a party who has been induced by fraudulent representations to sell his goods to another elects to ratify the sale after knowledge of all the material facts going to prove the fraud, such election will be conclusive, although at the time he makes it he is ignorant that his vendee had made similar fraudulent representations to others by which he had obtained property from them.
    Appeal from judgment of the supreme court, general term, first department, denying motion by plaintiffs for a new trial made upon exceptions ordered to be heard in the first instance at general term.

      B. F. Finstein, for app’lts; Louis Marshall, for resp’t.

       Affirming 33 N. Y. State Rep., 941.

   Peckham, J.

I am inclined to think the plaintiffs gave sufficient evidence of the purchase of the goods with a fraudulent intent, by the assignor of.the defendant, to entitle them to a submission of the question to the jury, were it not for the facts put in evidence regarding their election of an inconsistent remedy.

The facts are that on the 27th of October, 1885, the plaintiffs sold and delivered to defendant’s assignor goods and merchandise to the value of $1,166.10, and took his note in payment thereof, payable in four months from November 2, 1885. On the 21st of December, 1885, the defendant’s assignor made an assignment to defendant for the benefit of the creditors of the assignor, and on the next day the plaintiffs commenced an action against the assignor to recover the purchase price of the goods so sold in in October, notwithstanding the credit then given had not expired. The plaintiffs claimed the right to ignore the credit, upon the ground that the defendant’s assignor had procured the sale of the goods to him by virtue of a fraud. In an affidavit in the action, made to obtain an attachment, one of the plaintiffs stated that the assignor at the time he purchased the goods from plaintiffs had made certain representations (which he set forth in the affidavit) for the purpose of obtaining credit on such purchase, and that the plaintiffs relied on them and were induced by their means to sell and deliver the goods to him on the credit asked for. It was further stated in the affidavit that such representations were false in every particular, and that the assignor knew they were false when he made them; that he had since then made a general assignment and had given preferences to his wife and others, which were made to cover up his property and remove it beyond the reach of his Iona fide creditors, and that the preferences were fraudulent, and that he had thereby removed and disposed of his property with the intent to cheat and defraud his creditors.

The action in which the attachment was sought, it is thus seen, was one which ratified the sale of the goods but ignored the credit and sought to recover the purchase price of the property sold. The attachment was granted, but it was subsequently vacated by the general term, and the suit to recover the purchase price of the goods sold was thereupon discontinued.

After such discontinuance the plaintiffs commenced this action, in which they repudiate the sale and claim the specific property which the assignor had obtained from them and which they now claim is their property and has been at all times, because the assignor when he procured it from the plaintiffs purchased it with the intent not to pay for it.

The first suit ratified the sale of the goods and sought to recover their purchase price, while this action repudiates the sale and claims the title and ownership of the goods themselves and seeks their recovery in specie.

These are, of course, inconsistent attitudes and constitute,prima facie, an attempted enforcement of inconsistent remedies.

The plaintiffs show, in their affidavit in the first action to obtain an attachment, that they had knowledge of the facts constituting the fraud by which their property was obtained by the assignor. From that affidavit it appears that they knew that the representations made to them by the assignor were false and, as they charged, were also fraudulent, and that they were made for the purpose of obtaining the property of the plaintiffs on credit without paying for it, and they knew when they commenced the action of the fact of the insolvency of the assignor at the time he made his representations. With this knowledge they commence .an action which ratified the sale by them to the assignor. This would seem to constitute a clear case of election. But the plaintiffs claim that they only ratified the sale of their property to the .assignor after a knowledge of the facts above stated, but that there is no evidence plaintiffs knew of the fraudulent representations made by the assignor to others at' about the same time and by reason of which, added to the fact of insolvency, they urge that the assignor was guilty of an entirely separate fraud upon plaintiffs by purchasing their property with a preconceived design not to pay for it, and this fraud being unknown to them, or at least there being no evidence that they did know of it at the time of the alleged election, they are not to be bound by it.

They seek really to make two distinct causes of action out of the transaction by which their property was fraudulently obtained from them by the assignor.

Acting on that theory, the plaintiffs gave no evidence on this trial of any representations made to them by the assignor, but, in connection with the other facts in the case, relied altogether upon evidence of similar false representations made to others at about the same time. This was a scheme, they say, by the assignor to purchase a large amount of goods from many different parties upon these false representations and with full knowledge of his insolvency, and with this preconceived design not to pay for them, but soon thereafter to make an assignment with preferences, as already stated. The difficulty with the plaintiffs’ case lies in making any substantial separation of the fraud by which the property was obtained. It was in reality one transaction. The assignor procured the plaintiffs’ property by fraud. The fraud consisted in false and fraudulent representations, relied on by the plaintiffs ■and known to be false by the assignor, but made for the purpose of thereby inducing the sale, which in fact was thereby induced. The fact that the assignor made other fraudulent representations of a similar nature to other persons at about the same time does not alter the fact that these representations were made to plaintiffs and that the plaintiffs were thereby induced to sell. Evidence of the other representations might strengthen the plaintiffs’ case upon the question of the fraudulent intent, but would not ■alter the nature of the fraud perpetrated upon them. With full knowledge of that fraud they have elected to ratify the sale. Very likely at the time of the election made by them' they were ignorant of all the evidence which would- aid in the. proof of the fraud, but knowledge of all such evidence is not necessary to-make an election conclusive.

While a party_ may be convicted of fraud in purchasing property with a preconceived design. not to pay for it without proof of any false representations made to the seller, yet in this case the plaintiffs have themselves alleged in the affidavit already alluded to that the goods were'procured from them by means of false and fraudulent representations made to them, and hence any proof of the same kind of representation's made to others must be material only upon the question of fraudulent intent, ,

It seems quite'plain, therefore, that there was but one fraud practiced upon the plaintiffs when their property was obtained, and although the assignor may have had a preconceived design not to pay for it, yet he obtained it by reason of his false representations.

Where a party who has been induced by fraudulent' representations to sell his goods to another elects to ratify the sale after knowledge of all the material facts going to prove the fraud, such election will be conclusive, although at the time he makes it he is-ignorant that his vendee had made similar fraudulent representations to others by which he had obtained property, from them. The fact of the making of similar fraudulent representations to others is in such case nothing more than in substance cumulative evidence upon the question of the intent with which the representations were made to the seller. It is not necessary, in order to-make the election conclusive, that the party electing shall be-acquainted with every particle of evidence which may tend to prove the fraud. So long as he has knowledge of all the material facts which go to make up the case of fraud as practiced. upon him it is sufficient It rarely occurs that the seller is cognizant, at thé time he acts, of every particle of evidence which tends to prove the fraud. It will frequently, if not generally,, happen that some portion of the evidence tending to prove the main facts in the case will come to light after the action taken by the seller, and if the knowledge of such fact were a necessity in order to conclude the party by his election the doctrine itself would be of no account. Knowledge of the facts must mean in such cases knowledge of the material facts to show the actual perpetration of the fraud upon the seller, and not knowledge of all the evidence which may tend to prove the main fact. The case of Hays v. Midas, 104 N. Y., 602 ; 6 N. Y. State Rep., 472, is not. in point

There the action first brought was to recover the purchase price of the goods sold, and an attachment was issued upon affidavits which alleged that the defendant had removed and disposed of his property with intent to defraud creditors. The second action was to recover the personal property sold. It was stated here that the two actions were inconsistent, and if it had appeared that the plaintiff instituted the first with knowledge that the defendant had obtained the goods fraudulently, the plaintiff would have-been concluded by his election in the first action. But it was-said there was no proof of any such knowledge, and that the affidavits -which showed a fraudulent disposition of the property were not the slightest proof that the defendant had fraudulently procured it.

The trouble with the plaintiffs’ case here is that the affidavits show the existence of the very knowledge by the plaintiffs which if it had existed in the Midas case we said would have prevented a recovery therein.

We think the plaintiffs made an election which ratified the sale •of the goods by them to the assignor, and consequently they cannot maintain an action which is based upon the assumption that "they still own the property.

The judgment must be affirmed, with costs.

All concur.


author: Gray, J. O’Brien, J. (dissenting).

text:
    Delora M. Hunter et al., Adm’rs, Resp’ts, v. The Cooperstown & Susquehanna Valley R. R. Co., App’lt.

      (Court of Appeals,

      Filed March 10, 1891.)

    .1. Negligence—Contributory—Boarding moving train.
    If a person when in a safe position and under no stress of circumstances attempts to get upon a train moving past him, at no matter what , • rate-of speed, while in such a proximity to a known and prominent obstruction, such as a freight platform, as to render the consequences of a false or mis-step possibly, if not certainly serious, he is guilty of contributory negligence.
    (Huger, Oh. J., O’Brien and Andrews, JJ., dissent.)
    :2. Same.
    To alight from, or to board a train in motion is a negligent and hazardous act, which can only be made to appear excusable, when, in the situation of the person, he is under such a coercion of circumstances as to raise a fair question as to whether he was really in the free possession and use of his faculties and judgment.
    Appeal from judgment of the supreme court, general term, ■fourth department, affirming judgment for plaintiff.

      E. M. Harris, for app’lt; Carlton B. Pierce, for resp’ts.

       Reversing 34 N. Y. State Rep., 1016.

   Gray, J.

Upon a previous occasion we reversed a judgment recovered by these plaintiffs and ordered a new trial, upon the ground that the act of the deceased in attempting to board the moving train was reckless and dangerous and contributed to the resulting injury. As the case was then presented, the fact was •established by the evidence for the plaintiffs that the speed of the •train was from four to six miles an hour at the time the deceased jumped on, and though it was substantially admitted that the .attempt was negligence on his part, it was argued that the act was justified because requested or directed by the conductor of the train. That direction was in these words: “ If you are going, jump on.” But we held that that circumstance constituted no excuse for the dangerous act, inasmuch as it created no emergency calling for the immediate exercise of judgment in the choice between two dangers, and that it amounted to nothing more than, a notification that the train would not stop, or go slower. Upon, this appeal the plaintiffs endeavor to sustain another judgment, recovered against the company upon the new trial. -They say that, the case, though “practically the same,” differs from the previous-case in a vital feature; namely, with respect, to the speed of the train. Upon the new trial evidence was given by three witnesses that the speed of the train was between one and two miles an hour. Of these witnesses, two had previously testified to a speed of four to six miles an hour and the other had not testified upon that subject. In view of the doubt justly resting upon the character and correctness of this evidence, we might very properly say that-it was open to the court to take as the fact concerning the speed of the train the evidence given by the other witnesses in the case-for both parties, which placed it at about' six miles an hour.

But we shall, for the purposes of the case, assume that the evidence as now given left it a question of fact as to how fast the train was moving past the station. We will accept that rate of speed deemed by the plaintiffs as most favorable to their contention, and still we must hold that the plaintiffs were not entitled to a recovery on their case. The conclusion was irresistible from the facts that-the conduct of the plaintiffs’ intestate was negligent and that his act contributed to his injuries and death. He was described as a quick, active man, thirty-six years of age and in good health. He had lived several years in sight of the station and had frequently taken the train there. On the morning in question, accompanied by a friend, he went to the station and stood with him upon the freight: platform of the station until the train came in sight. The deceased then descended the steps leading to the lower or passenger platform and waited there, at a point some four or five fpet away from the steps. The train slacked its motion but did not stop, and as the passenger car approached, the conductor, standing at the forward end, said to them, “ If you are going, jumpo on.” The deceased made an effort to do so, but, in some way not exactly described, was caught and rolled between the moving train and the freight platform, near to which he was standing. Very probably, in the attempt to get upon the moving car, the deceased, not reckoning upon the nearness of the higher and projecting freight platform, struck against it, was thrown down and was forced between it and the train. Upon the facts, in what respect was the defendant guilty of negligence and how was it responsible for the injury which resulted to the deceased?- That the train did not-stop at a particular or at the usual place, and ran beyond the station, would not charge the defendant with negligence in the sense that it thereby caused the unfortunate result complained of. The deceased was under no obligation to board the train. In fact he had no especial right to be carried by it. He had no ticket; but even if he had one, that would not have placed the company under any contract to carry him upon that train. If its servants disregarded the time-table notice as to that station upon the morning in question, that fact did not entitle the deceased to disregard the-usual prudential considerations which should govern human action,. nor did it subject the defendant to a liability for the consequences of an attempt to get upon a train in motion.

The invitation, request or command of the conductor, however his words may be regarded, in no respect compelled the deceased to leave the place of safety upon the platform or to change his position. • He was a free agent and had the opportunity of choice between staying where he was and complying with the conduct- or’s request He could have waited for the train to come to a full stop, or for another train. The question of his convenience or inconvenience is of no consequence and cannot enter as an element of the case. If a person, when in a safe .position and under no stress of circumstances, attempts to get upon a train moving past him, at no matter what rate of speed, while in such a proximity to a known and prominent obstruction, such as was this freight platform, as to render the consequences of a false or mis-step possibly, if not certainly, serious, wo think that but one inference and opinion can be entertained. The act would be hazardous, and however slight the chances of injury might have seemed to him, and whatever the motive or influence which induced the act, the individual would alone be responsible for the injury which might result to him. Sufficient responsibility is imposed upon these corporations in the operation of their roads already, without adding to it a further responsibility for the consequences of rash and unnécessary acts. The railroad and the trains upon it charge all persons having anything to do with or about them with the knowledge of possible dangers, and their presence impose the duty of being vigilant and prudent, if responsibility for an occurring injury is to be escaped. It js unnecessary -to" refer to authorities, bearing upon- the - question-before- us. That has been done by Judge Peckham in his opinion when this case was formerly before us. The only difference now is, that the respondents claim the speed of the train, as testified to, was so very moderate as to take this case out of the effect of our previous decision and to make it one for the jury to pass upon with respect to the question of whether the act of the deceased was negligent. It is true that upon the previous appeal we laid stress upon the fact that the rate of speed was so rapid as to compel the judgment to pronounce it a reckless act to attempt to board the train. But we did not hold that if a train was moving much more slowly, the attempt, under the circumstances disclosed here, might be warrantable, or would raise a question for the jury to consider.

It was said that there may be cases in which an attempt to get. on or off a moving train would not be regarded as negligence as matter of law. And so there may be, but this is not one of those cases, inasmuch as the deceased was under no coercion nor obligation, and had no especial right' to be carried by that train. He was so placed that while safe if he remained quiet and where he was, he was bound to know, and must have known, that if he endeavored to get upon the moving train and should fail to accomplish it upon the second, or should take a misstep, he incurred the risk of being thrown against the neighboring freight platform and injured. The case of a passenger who alights from a train moving past his destination, in complianc'e with the.-direction of a servant of the corporation, as in the Filer case, 49 N. Y., 47, cannot be altogether likened to the present case. In such a case there may be a stress of circumstances, in the passenger being obliged to choose between being carried away from the place where his duties or ties compelled his presence, and of endeavoring to alight, upon the direction or suggestion of the railroad employe. The question, then, might very properly be left to the jury for them to pronounce upon the character of the act; but even then, as it was held in the Filer case, if the cars were moving at such a rapid rate as to charge the person with knowledge of the danger in the attempt, the act would be reckless and no recovery could be had. To alight from, or to board a train in motion, is a negligent and hazardous act, which can only be made to appear excusable when, in the situation of the person, he is under such a coercion of circumstances as to raise a fair question a,s to whether he was really in the free possession and use of his faculties and judgment. Solomon v. Manhattan R. R. Co., 103 N. Y., 437; 3 N. Y. State Rep., 636. Judge Andrews, in the case cited, held substantially as I have just stated. In his view there is less excuse in boarding a moving train than in alighting from it, and the distinction is obvious. The option in the former case- is between an unnecessary and possibly dangerous act and the mere inconvenience of being left to take a later train.

These views lead to the conclusion that the judgment below should be reversed and a new trial ordered, with costs to abide the event

O’Brien, J. (dissenting).

When this case was here on a former appeal, 112 N. Y., 371; 21 N. Y. State Rep., 1, it was held that the plaintiffs’ intestate was guilty of negligence contributing to his death because he attempted to board the train when running by the station .at the rate of at least six miles per hour. As the case was then presented the testimony conclusively established the fact that at the time when the train was passing the platform on which the deceased stood it was running at that rate of speed at least, if not even more. How the case is here upon a very different state of facts. Upon the last trial, resulting in the judgment now under review, three witnesses called by the plaintiffs testified that the train was running at the time the deceased attempted to get on at a rate of speed not to exceed from one to two miles per hour. One of these witnesses was the engineer who had charge of this very train when the accident happened, and another was the fireman. The defendant on the first trial gave no evidence in regard to the speed of the train, but on the last trial it called two witnesses, who testified that it was six or seven miles per hour. There were some facts and circumstances proven, bearing on the question of speed, which could also have been considered by the jury, not the least important of. which was the undisputed fact that, though the train was running upon a slippery track and a •down" grade, it was brought to a full stop within 100 feet of the point where the deceased attempted to get on. In this conflict of testimony the case went to the jury, and the verdict for the plaintiffs must be taken by us as conclusively establishing the fact that the train was running at the rate of from one to two miles per hour. It is said that two of the plaintiffs’ witnesses testified on the first trial to a greater rate of speed than upon the last trial. That, if true, was a circumstance for the consideration of the jury in determining what weight the testimony was entitled to, but it has no place in the consideration of this appeal. The only question that we have to deal with is whether the deceased in attempting to board the train when going by the station platform at the rate of from one to two miles per hour, and having been invited by the conductor in charge of the train to “jump on,” was guilty of negligence as matter of law. It was a regular station on defendant’s road where its trains stopped, and where passengers got on and off.

On this morning, however, it failed to stop. The plaintiffs’ intestate was on the platform waiting for the train which he intended to take as a passenger, and while so waiting for it to stop it proceeded slowly past the platform, and when the rear car, which was the only passenger car on the train, had nearly reached the point where he was, the conductor, not intending to stop, invited him to get on and he attempted to do so and was killed. It is not the province of this court to examine the evidence in order to form some theory as to the particular manner in which the deceased was killed. That was for the jury. We can only know from the findings below that the platform on which he stood was separated from the car into which he was invited by a space not more than six. inches wide. That the iron railing on the part of the car through which he must pass was two feet and six inches wide ánd the platform of the car which he attempted do reach was but two feet higher than the place where he stood. The attempt of a passenger to board a train going at a very low rate of speed in this manner and under such circumstances is not, in my opinion, such a reckless and dangerous act as to warrant any court in pronouncing it negligence per se. It is an act in regard to which reasonable and prudent men may differ and, therefore, it is. for the jury to determine its true character as a question of fact, under all the circumstances of the case. The true rule was stated by Peckham, J., in his opinion' in this very case on the former appeal in this language: “There may undoubtedly be circumstances under which an attempt to get on or off a moving train would not be regarded as negligence, as a matter of law, and where the question of negligence under all the circumstances of the case should be submitted to the jury.”- If this rule cannot properly be applied to a case like this, where the train, upon the finding of the-jury, was barely in motion, it cannot have any practical application to any case whatever. If it is correct to say that a passenger in attempting to board a train, moving at the rate of from one to two miles per hour, under the conditions and circumstances appearing in this case, is guilty of negligence as a matter of law, then the. same result must follow in every case where the train is in motion at all.

The act of alighting from a moving train is quite as dangerous as an attempt to board it while going at the same speed. The only difference is that there exists a stress of circumstances in the former case that does not exist in the latter. But the fact that there may be reasons for risking the danger in one case which do not exist in the other is not alone enough to change the question from one of fact to one of law. This court has held that a passenger who attempts to get off a slowly moving train by the invitation of a servant of the company is not, as a matter of Jaw, guilty of negligence. Filer v. N. Y. C. & H. R. R. R. Co., 49 N. Y., 47.

In that case the danger of getting off was as great, and even greater, than would be an attempt to get on while the motion of the train was the same. The passenger could have remained in "the train and suffered the inconvenience of being carried past her home, and in the case at bar the deceased could have waited for another train, but surely this difference in the circumstances cannot change what was held to be a question of fact in the former case into a question of law in this. The highest court in at least three of our sister states has passed upon this question, and in each case it has been held to be one of fact

In Johnson v. Westchester & P. R. R. Co., 70 Penn. St., 357, a passenger attempted to board a train moving at from three to four miles an hour. There was no invitation to enter the car. It was held that it was for the jury to say whether the danger of boarding the train when in motion was so apparent as to make it the duty of the passenger to desist from the attempt. Where the conductor failed to stop the train at the platform where passengers landed, and when the train was moving at from two to four miles an hour, he told a passenger to get off, who obeyed his direction and was killed, it was held that this act was not in law negligence, but was a question for the jury. Lambeth v. N. C. R. R. Co., 66 N. C., 494.

In another case a young,, vigorous man stepped down from a moving train. He had a valise in one hand and a basket in the other. There was no direction from any servant of the company. In an action to recover for injuries received it was held that it was a question for the jury whether he exercised due care. Cumberland Valley R. R. Co. v. Maugans, 61 Md., 53.

I think that the act of the deceased, in attempting to board the train upon the invitation of the conductor, and under all the circumstances disclosed in this case, presented a question of fact for the jury and not a question of law.

The judgment in this case cannot be disturbed unless we are prepared to decide that the deceased was in law guilty of negligence in attempting to board the train in the manner and under the circumstances stated. The evidence of negligence on the part of the defendant is precisely the same now as when the case was here before. On that appeal Judge Peckham said : ‘Tt was the duty of the railroad company (having advertised so to do) to stop its trains at the station in question and to give ample time to all persons desirous of getting on or leaving at that station to do so; ” and again, referring to the invitation of the conductor to get on the train, he said : “ It may be assumed that this direction implied a notice to the deceased that the train would not stop at that station, and that unless he attempted to get on while the car was thus in motion he would be left at the -station and compelled to take another and a later train. It may be assumed that in giving this direction and in failing to stop the train the company was chargeable with negligence.”

The point that the trial judge submitted nothing to the jury except the evidence as to whether the conductor did or did not invite the deceased to get on the train is utterly untenable. The jury were expressly charged to inquire upon the evidence whether the defendant failed to perform its duty to the deceased in not bringing the train to a stop, and, upon the question whether a safe opportunity was afforded to the defendant to get upon the train, they were to consider the evidence in regard to the invitation of the conductor. At the end of the charge the defendant’s counsel requested the court to instruct the jury that in case they found that the conductor did not invite the deceased to get aboard the train their verdict must be for the defendant, as that ended the case, and this request was allowed. This did not withdraw from the jury the evidence bearing upon the failure of the defendant to stop, or any other question previously submitted, but was in effect an instruction that although the defendant failed in its duty to stop the train at the station yet there could be no recovery unless the conductor invited the deceased to get on. If there was any error in this part of charge it was in favor of the defendant, and cannot now be used for the purpose of reversing the judgment.

The judgment should be affirmed.

Judgment reversed and new trial granted, with costs to abide the event.

Earl, Finch and Peckham, JJ., concur; O’Brien, J., reads for affirmance; Huger, Ch. J., and Andrews, J., concur.


text:
    Frank Chamberlain, Resp’t, v. Robert Dunlop, Ex’r, App’lt.

      (Court of Appeals,

      Filed March 10, 1891.)

    1. Lease—Extension oe.
    Where a lessee has a right to have the term of a lease extended by-giving notice of his election, the force of such a notice is not impaired because, in such notice, after stating his election to have the lease extended, he also proposes a modification of its terms with a view to a further extension.
    2, Same—Surrender.
    While the acceptance of a new lease by a tenant during the term of a former one implies a surrender, by operation of law, of the old lease, there must be a valid acceptance of the new lease, and where there was an agreement providing for the conveyance of the whole interest to the tenant and the parties failed to convey all- of such interest, and the tenant never accepted such lease with knowledge that it did not fulfill the terms of the agreement, and there was never any entry under the lease, and before the time arrived at which the lesse, by its terms, was to become operative the property had been destroyed by fire, the original lease remains in full force.

      3. Same.

    An executor is bound to carry out an agreement made by his testator with a tenant to rebuild in case the building is destroyed by Are.
    4. Same—Expert testimony—Architect.
    The testimony of an architect is admissible to show the time it should take to do certain work, and whether such work could be done in a" certain time without dangerous haste.
    Appeal from judgment of the supreme court, general term,, third department, modifying and affirming a judgment in favor of plaintiff entered upon the report of a referee.

      Burdick é Burdick, for app’lt; Isaac Lawson, for resp’t '

       Affirming 28 N. Y. State Rep., 375.

   Peckham, J.

None of the grounds argued by the counsel for defendant is sufficient to call for a reversal of this

(1) The lease was properly extended in the manner provided for by its terms and was recognized as a valid and existing lease up to the death of the testator, at which time nearly one-half of the extended period had expired.

The lease provided for an extension of its term by two years, provided the lessee, three months before the expiration of the original five years, gave a written notice to the lessor of his desire to extend the lease for that further period. This the lessee did. Because he made a suggestion in that notice, that if the lessor chose they would regard the lease as extended two years and a half, had no bearing upon the sufficiency of the written notice, and the refusal of the lessor to grant the extra six months extension acknowledged the right of the lessee to the two years provided for by the lease itself.

(2) The lessee of the original lease never either iii fact or in law surrendered it by reason of what took place in regard to the execution of the lease by Wallace on the part of the. heirs-at-law. The facts show there were a widow and several heirs-at-law., and that the widow had a right of dower in the premises, and that one of the heirs-at-law at the time of the execution of the lease by Wallace, as the agent of the heirs, was an infant. The lease purported to grant the interest of the heirs in the premises from the first of the coming May, for five years. The evidence is uncontradicted that the agreement between plaintiff and Mr. Wallace was that the plaintiff should have all the interest of all the parties in the premises for the five years, and that when the plaintiff executed the lease he had no personal knowledge as to who succeeded to the interest of Robert Dunlop, and he supposed that the lease covered the interest of all parties having an interest in the premises.

It is also in proof and found by the referee that the widow had a right of dower in the premises. She did not sign the lease and neither her interest nor the interest of the infant passed under it. The very day the lease was received, signed by Wallace as agent, the fire occurred. It is obvious that the plaintiff did not secure by the lease the interest which he had provided for by his agreement with Mr. Wallace. The dower of the widow was outstanding and the interest of the infant was not affected by the lease. ■The original lease was not surrendered for the reason that the new one did not give plaintiff the interest he contracted for and which he thought he was acquiring. Under such facts the cases hold there is no surrender. Whitney v. Meyers, 1 Duer, 271; Schieffelin v. Carpenter, 15 Wend., 405; Coe v. Hobby, 72 N. Y., 146.

This is not the case of a lease of one tenant in common to a stranger, purporting to convey the whole interest in the land, and an entry by the lessee under it, and an acquiescence by all the other tenants in common. There was never a valid acceptance of the new lease. The agreement provided for the conveyance of the whole interest to the plaintiff and the parties failed to convey all of such interest, and the plaintiff never accepted such lease with knowledge that it did not fulfil the terms of the agreement, and there was never any entry under the lease, and before the time arrived at which the lease by its terms was to become operative, the property was not in existence, having been destroyed byofire. Hence the original lease remained in full force.

(3.) The defendants moved for a non-suit upon the grounds, among others, that the executor had no power to rebuild and no control over the heirs at law to make them rebuild, and also because on the death of the lessor the plaintiff paid rent to, and held under the heirs at law, and not under the defendant executor. There is no finding by the referee as to the last alleged fact, and the evidence does npt show that such is necessarily the fact. It rather shows the contrary. As to the first ground, that the executor had no power to rebuild, I think the authorities are clearly the other way.

The presumption is that the party making a contract intends to bind his executors and administrators, unless the contract is of that nature which calls for some personal quality of the testator, or the words of the contract are such that it is plain no presumption of the kind can be indulged in. Tremeene v. Morison, 1 Bing. N. C., 89; Reid v. Tenterden, 4 Tyrwhitts, 111; Kernochan v. Murray, 111 N. Y., 306; 19 N. Y. State Rep., 491.

Where a party has entered into a contract to purchase real estate and dies before it is conveyed to him and before he has paid for it, his heir or devisee is entitled to have his executor pay for the realty out of the personal estate. Broome v. Monck, 10 Ves., 596, 611; Re-argued, 619; Livingston v. Newkirk, 3 John. Ch., 312; Wright v. Holbrook, 32 N. Y., 587; 1 Sugden on Pow., 293, 8th Am. ed.; 3 Red. on Wills (2d ed.), 302, § 11.

The executor is not permitted to violate the contract of his testator after the latter’s death. Wentworth v. Cock, 10 Ad. & El., 42; Siboni v. Kirkman, 1 M. & W., 419; remark of Parke, B.

In Quick v. Ludburrow, 3 Bulst., 30, Lord Coke said that if a man be bound to build a house for another before such a time, and he which is bound dies before the time, his executors are bound to perform this. To same effect Tilney v. Norris, 1 Ld. Raym., 553; Tremeene v. Morison and Reid v. Tenterden, supra. If the testator devise his land to other parties, the executor still remains liable on the covenant of his testator. If the devisees do not permit the executor to build, the covenant is broken, and it is the act of the devisor in devising his property thus that prevents the executor from fulfilling.

If the land descend to the heir, then the covenant still remains in force, and if it should be that the executor could not force the heir to permit the building, still the estate is liable on the covenant, and the executor must pay the damages if he have assets. The judgment here is. only against him as executor, and is fully warranted in law.

(4.) The exceptions to the rulings of the referee in the admission or rejection of evidence are not tenable. The value of the lease for the time the plaintiff would have been in possession after the premises were rebuilt and before the lease had expired, was properly testified to by the plaintiff. It was a matter of opinion to some extent, based upon facts, all of which he had testified to, and his experience and knowledge were more than that of any othSr person in regard to the very question which was asked. The evidence of Fleischman was properly admitted. He was an architect and to some extent, therefore, familiar with building and the time it should take to do certain, work, and with the fact whether the work could be done in a certain time without dangerous haste.

We are unable to find any fair reason for disturbing this judgment, and it should be affirmed, with costs.

All concur.


author: Earl, J.

text:
    The People, App’lts, v. The Broadway R. Co. of Brooklyn, Resp't.

      (Court of Appeals,

      Filed March 10, 1891.)

    1. Raileoads—Foefeitbee fob failbbe to constbbct branches.
    Defendant, was organized under chap. 303, Laws 1858, and the general railroad act, and constructed its road within eighteen months upon the route specified, for about four miles and a half. By chap. 461, Laws 1860, it was authorized to construct three branches as specified, and also whenever certain streets should be opened, graded and paved to extend tracks through them. It was also to complete the branches by October 1, 1861, or “as soon thereafter as the said streets and avenues within said city shall have been opened, graded and paved, and upon any planked road or roads, whenever the consent of the plank road companies shall have been obtained.” In 1861 defendant had laid a mile and a half of tracks through certain streets and operated them until 1876, when it removed the tracks and never since maintained or operated any road therein. In 1887 it laid 3,000 feet of tracks on Central avenue, but never operated cars thereon. A number of the streets named had been opened, graded and paved during the interim. Meld, that it was the intention of the act of 1860 that the road was to be extended as the streets were opened and graded and the consent of the plank roads obta ned, and that defendant was bound to build roads on the paved streets before October 1, 1861, and upon the other streets when they were opened, graded and paved, and not having done so that it had forfeited its franchise.
    3. Same.
    Chap. 598, Laws 1875, and chap. 598, Laws 1879, giving an extension of time for any railroad company which had been unable to construct its road, do not apply to defendant, as it had commenced the construction of its road.

      Appeal from judgment of the supreme court, general term, third department, reversing judgment of forfeiture of franchises, granted by chap. 461, Laws 1860, and perpetually enjoining defendant from their exercise.
    This action was commenced in May, 1888, to have declared forfeited, for non-user, the franchises obtained by the defendant under chap. 461 of the Laws of 1860, in certain streets of the city of Brooklyn. The defendant interposed an answer to the complaint, and the action was brought to trial at a special term, where judgment was rendered forfeiting the franchises as prayed in the complaint. From that judgment the defendant appealed to the general term, where the judgment was reversed and an absolute judgment was given for the defendant dismissing the complaint, and then this appeal on behalf of the People was taken to this court. The material facts appear sufficiently in the opinion.

      Benj. F. Tracy and Jesse Johnson, for app’lts ; Geo. W. Wingate .and Thos. S. Moore, for resp’t.

       Reversing 39 N. Y. State Rep., 343.

   Earl, J.

The defendant was organized in pursuance of the act, chap. 303 of the Laws of 1858, under the general railroad act, and it was required to complete its road through the streets mentioned in the first section of the act within eighteen months from the passage of the act. It constructed its road within the the time mentioned upon the route specified, a distance of about four miles and a half. In April, 1860, the act, chap. 461 of the laws of that year, was passed, § 1 of which is’as follows:

‘ It shall be lawful for the Broadway Railroad Company of Brooklyn, organized by virtue of the act hereby amended, to lay down a single line of railroad track, commencing at their present track at South Sixth street, through Eighth street, to and across Broadway, to Ross street, and double line of railroad tracks through said Ross street and Bedford avenue to Fulton avenue; and whenever Mostrand or Rogers avenue shall have been legally opened, graded and paved, to extend the line of double tracks through Fulton and either Mostrand or Rogers avenue to the village of Flatbush. Also, to lay a single line of railroad track, commencing at their present track bn South Sixth street, through Eleventh street to South Fifth street; through South Fifth street to Montrose avenue; through said avenue to Morrell street; through Morrell to Johnson street; through Johnson street to intersect the track of said company on Broadway, and a double line of tracks from Morrell street, through Johnson, to its intersection with the Cypress Hills plank-road, and through and over said plank-road to Cypress avenue; and whenever Cypress avenue shall have been legally opened and graded, to extend a double or single track on said avenue to Cypress Hills Cemetery. Also, whenever White, Bogart or Thames streets, and Central or Knickerbocker avenue, shall have been legally opened and graded, the said company are authorized to lay a double or single line of railroad track through and over the same to the city line, from the intersection of either White or Bogart streets with the Hills plank-road, and the track hereinbefore authorized to be laid on said plank-road, with, the privilege to lay tracks for the necessary turnouts, which tracks, when laid, shall be maintained and operated by said company in conformity to the several provisions of the act hereby amended relative thereto.” And § 3 of the act is as follows:
“ Said railroad company shall complete the tracks upon the said several streets and avenues or roads named in the first section of this act on or before the first day of October, eighteen hundred and sixty-one, or as soon thereafter as the said streets and avenues within said city shall have been opened, graded and paved, and upon any planked road or roads whenever the consent of the plank-road companies shall have been obtained.”

The defendant accepted the act and the franchises and rights thereby given, and assumed the obligations thereby imposed. At the time of the passage of the act' of 1860 Eleventh street from South Sixth street to Sou,th Fifth street, South Fifth street from Eleventh street to Montrose avenue, Montrose avenue from South Fifth street to Morrell street, Morrell street from Montrose avenue to Johnson street, and Johnson street from Morrell street to’ Broadway, were city streets opened, graded and paved and traveled and in use as such. The aggregate length of such streets was about one mile and a half. In the fall of 1860, the defendant constructed a single line of railroad tracks through such streets, and began to operate the same with cars on the 1st day of March, 1861; and so it continued until in the year 1876, when it removed its tracks from those streets, and it has never since maintained or operated any road therein. In 1887, the defendant commenced the construction of its road on Central avenue, and expended in so doing upwards of $12,000, and laid upwards of 3,000 feet of tracks, when it was stopped by adverse litigation; but upon the tracks thus laid it has never operated any cars.

It thus appears that during the twelve years prior to the commencement of this action the defendant did not maintain or operate a railroad upon any of the routes mentioned in the act of 1860, and that during twenty-eight years prior to the commencement of this action it did not attempt to build or maintain, any railroad upon any of the routes mentioned in the act of 1860, except as above mentioned.

The claim on the part of the plaintiffs is that for the non-user of the franchises conferred upon the defendant by the act of 1860, and for its neglect to perform the obligations assumed by it under that act, it forfeited all its rights and franchises under the act j and so it was held at the special term.

The defendant claims that it was not bound to build its road upon any one of the routes mentioned in the act until the streets upon such route were opened, graded and paved so that the road could be constructed upon the whole routes and, therefore, that it had not forfeited any of its franchises; and so the general term held, and reversed the judgment of the special term.

The general and special terms differed as to the construction of the act of 1860, and as the real merits of the controversy between the parties depend upon the construction of that act, we will, in the main, confine our attention to that.

As the judgment of the general term does not state that the reversal was upon the facts, we must presume it to have been solely upon the law, and not upon the facts, or in the exercise of any discretion. Code, § 1338.

The act of 1860 was obtained by the defendant, or in its interest. It may be assumed that the language therein contained was the languge chosen by it to define the rights and franchises which it sought by the act. As the act conveyed to it franchises and special privileges, its language must be construed most favorably to the people and all reasonable doubts in construction must be solved against the defendant. Words and phrases which are ambiguous, or admit of different meanings, are to receive, in such cases, that construction which is most favorable to the public. Barrett v. The Stockton & Darlington R. R. Co., 2 M. & G., 134; Stourbridge Canal v. Wheeley, 2 B. & Ad., 792; Fertilizing Co. v. Hyde Park, 97 U.S., 659; Sprague v. Birds-all, 2 Cowen, 419; Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y., 444; People v. N. Y. & S. I. F. Co., 68 id., 71; Langdon v. The Mayor, etc., 93 id., 129.

The act must now be construed as the courts would have construed it if it had come in question soon after its passage. The defendant cannot claim a liberal or enlarged construction of the act to shield itself against a forfeiture alleged to have been voluntarily incurred. It would be quité a paradox to hold that it could enlarge its franchises or extend its rights by exposing them to condemnation for non-user. The language of the act must, under all circumstances, and in all proceedings and actions, receive the same construction and have the same scope and meaning. But while the act is to be strictly construed in such a case, the conduct under the act which is claimed to constitute the forfeiture of corporate rights and franchises is to have a charitable and liberal construction like any conduct tending to penal consequences. In considering such conduct courts will lean against forfeitures, and the doctrine that courts are reluctant to declare and enforce forfeitures can have no other application to such a case as this.

A few other facts must now be stated. Not only were the streets above mentioned, upon which the railroad was built in 1860, opened, paved and graded, but in that year Eighth street, from South Sixth street to and across Broadway to Ross street, and Ross street to Bedford avenue, and Bedford avenue to Fulton avenue were opened, graded and paved, and" the aggregate length of these streets was about two miles. Fulton avenue, from Bedford avenue to Nostrand avenue, was opened, graded and paved prior to 1855. Nostrand avenue, from Fulton avenue to the city line and the village of Flatbush, was opened on or prior to September, 1859, and graded and paved from Fulton street to Butler street prior to the year 1867, and from Butler street to the city line in 1869. Rogers avenue was opened in 1870, and graded and curbed from Dean street to the city line in 1875, and graded and paved from. Bergen street to-Dean street in 1886. The remainder of Rogers avenue is now a part of Bedford avenue, which was opened, graded and paved about the year 1870. Johnson street to its intersection with Cypress Hills plank road, and the plank road to Cypress avenue, were opened, making a good dirt road from Morrell street to the avenue, a portion of which was macadamized, and the whole of which is now known as Johnson avenue and used as a public street or highway, although it has never been opened, graded and paved under that name as one of the streets of the city. Cypress avenue, from its intersection with Johnson avenue to the city line, is a good country dirt road, but it has not been paved. Bogart street to Thames street was not paved until about the year 1887. Thames street, from Bogart street to opposite and adjacent to Knickerbocker avenue, and White street, from Johnson avenue (formerly Cypress Hills plank road), to a point adjacent to Central avenue, have not been opened, graded or paved. Central avenue extends from Flushing avenue to the city line, a. distance of about 9,900 feet. It was opened in the year 1871 a distance of about 9,100 feet and was graded and paved a distance of 6,000 feet on or prior to March 29, 1875, and a distance of 260 feet further in 1885, The remainder thereof was never graded or paved, and the portion thereof which is now graded or paved is about 3,600 feet in length. Knickerbocker avénue extends from Flushing avenue to the city line, a distance of about 9,200 feet. It was opened from Myrtle street to Greene avenue, a distance of about 2,000 feet, on or prior to Hovember 18, 1872. Between Flushing avenue and the city line it has been graded and paved for a distance of about 3,600 feet; on about seven or eight hundred feet of that portion of the avenue there is a dirt road which is used as a street and on which there are some houses; the remainder of such avenue is in fields entirely unimproved.

The defendant, having accepted the law of 1860, was bound to act under it. It could not accept the franchises given to it and then leave them in abeyance. They are supposed to have been given, not exclusively for the benefit of the defendant, but also in the interests of the public. It cannot be supposed that the legislature meant to give them without imposing obligations upon the defendant to build its roads until certain streets running out into the country should, in the distant future, be opened, graded and paved. Why was this act passed in 1860, if it was not intended or supposed that anything was to be done under it for twenty-five or fifty years ? Can it be supposed that the legislature meant to confer these franchises upon the defendant, leaving it optional with it whether it would build its roads in one or fifty years? Such legislation would be against public policy, and such, a legislative intent cannot be presumed.

It must be supposed that the defendant applied for the franchises and that the legislature granted them intending that they should be used, at least to some extent, and so far as practicable, in the near future. Why, then, did the defendant not at once construct the first route mentioned in the act, from South Sixth street to Fulton avenue? The streets on that route were opened, graded and paved, and no reason can be perceived why the road there should not have been built simply because Nostrand or Eogers avenues had not been opened, graded and paved. It was the plain intent that the road upon that route should be presently built, and that when Nostrand and Eogers avenues should have been legally opened the road thus built should be extended to the village of Flatbush. It cannot be properly said that a road is “ extended ” unless it is then and there existing to be extended. The- very language implies that the road was to be built and then, after the opening of the avenues mentioned, extended.

It was the manifest intention of the act that a road should be built upon the second route mentioned therein, to wit, through Eleventh street around to Broadway, and a double line of tracks from Morrell street to the Cypress Hills plank road, and through and over the plank road to Cypress avenue. That was a road also to be extended when Cypress avenue had been legally opened and graded. But its construction was not to be delayed until that event happened. The streets on a large portion of that route were actually opened, graded and paved, and the plank road was there an open highway upon which, by its consent, a railroad could be built. It is said in answer to this that it was not shown that the defendant had the consent of the plank road company. But it was its duty to use reasonable efforts and due diligence to obtain that consent, as it was its duty to use reasonable efforts and due diligence to build its road upon the routes mentioned. If it had shown that it could not procure the consent of the plank road company, that would have been a reasonable excuse for not building its road thereon; but no such proof was given or attempted, and therefore the fact that it was not shown that it had procured the consent of the plank road company is no answer to the claim that it was its duty to build its road upon that route. But for several years before the commencement of this action the plank road had disappeared and no tolls were there taken, and it was not necessary, therefore, for the defendant to procure its consent The legislative authority was all that was needed for the construction of its road upon that route. Therefore it was in default for not building its road upon that route.

Whenever White, Bogart or Thames streets, and Central or Knickerbocker avenue, should have been legally opened and graded, the company was authorized to lay a single or double line of railroad tracks through and over the same to the city line. But as these streets were not opened or graded it is quite clear that the defendant was not bound to build its road upon that route. But all these routes were part of an entire railway system. They were really branches of the Broadway road, the trunk line of the defendant. The third route above mentioned was evidently intended to be operated in connection with a portion of the second route mentioned, and the cars thereon were expected to reach Broadway and other parts of the city over that,route. If that route (the third) had been the only one upon which the defendant was authorized to build its road by act of 1860, the condition of things existing would have been an answer to any claim, that it had forfeited its franchise to build its road there. But when it has utterly failed upon other parts of the system connected with it, and has forfeited its rights and franchises upon them, then it must be deemed also to have forfeited its franchises and rights upon that route. It would be contrary to the manifest intention of the legislature that the defendant should fail and refuse to build and operate railroads upon all the other routes, and yet retain the right to build and operate a road upon that route. Its franchises upon that must fall with the franchises upon all the other routes.

So, if we look at § 1 of the act of 1860 alone, we find certain routes upon which roads could be presently built, and certain routes upon which roads were to be built when streets had been opened, graded and paved. Upon the former routes the defendant was bound by the terms of that section, standing alone, to build roads within a reasonable time. Upon the latter routes it was bound to build roads when the conditions existed which are referred to in the section.

But the defendant relies upon § 3 of the act and claims that that limits the times when it was bound to exercise its franchises and build and complete its roads, and the proper construction of that section is the main question in this case. The language of that section leaves no doubt that the legislature intended that the tracks upon some of the streets and avenues should be laid before the 1st day of October, 1861: and effect should, if possible, be given to that intention. We think it was the intention of the legislature, by the first clause of the section, to provide that roads upon the portions of -the routes which we have above mentioned, where the streets were opened and graded, and somé of them also paved, and more or less built upon, should be at once constructed and completed by the time mentioned, and the other clause providing for the construction of roads upon streets “ as soon as the said streets and avenues shall have been opened, graded and paved,” has reference to streets which were not then opened, graded and paved which are mentioned in the first section, to wit: Cypress, Nostrand, Rogers, Central and Knickerbocker avenues and the small streets connected with them. These two clauses of § 3 should be read distributively. The first clause should be applied to the streets above specified upon which roads could. be presently built, and the second clause should be applied to the other streets mentioned. The familiar rule of construction embodied in the Latin phrase “ reddendo singula singulis,” is peculiarly applicable to such a section as this. Endlich on Interpretation of Statutes, §§ 256, 416; Staats v. Hudson River R. R. Co., 4 Abb. Ct. of App. Dec., 287; Freethy v. Freethy, 42 Barb., 642; Coffin v. Hussey, 12 Pick., 289; Commonwealth v. Jordan, 18 id., 228; McIntyre v. Ingraham, 35 Miss., 25.

It cannot be supposed that the legislature intended to give the defendant, by the language used, an option to build its roads at any time it chose to, absolutely binding it to build them only when all the streets and avenues upon any one of the routes should be opened, graded and paved.

The argument on the part of the plaintiff to show that the claim of the defendant, that it was not bound to build upon any route until it was entirely “ opened, graded and paved” is untenable, finds some support in the provision in this section, that the defendant should build upon any plankroad whenever the consent of the plankroad company could be obtained. There was no other limit to the time of building its road upon that route, and it was bound, as we have before said, to use reasonable diligence to obtain such consent, without unnecessary delay.

It is said on behalf of the defendant that it would not have been profitable to build roads upon these various routes until each route was opened to the final termination thereof as provided in § 1. But even if it were absolutely certain that the defendant could have made no profit by building the roads to the extent which we have above indicated, yet that is no answer to the proposition that it is the duty of the defendant to build them. It applied for this act, and accepted the franchises, and thus took upon itself the obligation and burden to exercise the franchises for the public benefit. If these routes could not presently be made profitable for railroad purposes, it should not have applied for the act; or, the act having been passed, it should not have accepted the franchises. It was not bound to accept them. It may have been supposed and expected at the time that the building of these roads would stimulate the growth of the city in those parts, and thus that a road unprofitable at first would soon become, by the very facilities which it furnished, a profitable enterprise and investment.

It is said on behalf of the defendants that by the act, chapter 905 of the Laws- of 1867, it was absolutely prohibited from building its railroad upon Bedford avenue, and that such prohibition is an answer to its default in reference to that avenue. But at the time of the passage of that act it had been in default for upwards of five years, and that default was a cause of forfeiture. That route, however, is not now very important. If it is true, as said by the defendant, that the provisions of the last-named act prevent the building of the road, then a judgment forfeiting any franchise it had there can do it no harm. The scope of that act is not very certain, and does not extend to the whole route, and, therefore, it was quite proper that that route should be included in the condemnation visited upon the defendant by the judgment of the special term.

By the act, chapter 598 of the Laws of 1875, it was enacted that any railroad company which had been unable from any cause to construct its railroad within the period specified in its charter should have its time for construction extended for two years, arid that “failure by any railroad company to construct its railroad heretofore shall not cause a forfeiture of its corporate powers,” and by chapter 351 of the Laws of 1879, a further extension of two years was given in substantially the same language as was also given by the act, chap. 405 of the Laws of 1882; but in the second section of the latter act it was provided that the provisions of the act should not apply to any corporation or company that had already commenced the construction of its road. The latter act, therefore, clearly did not apply to this defendant, for it had long before constructed its main line, and had also commenced the construction of the lines specified in the act of 1860, which it subsequently abandoned.

But these acts do not apply to this defendant for another reason. It does not appear that it was unable, from any cause, to construct roads which we hold it was bound to construct under the act of 1860. These acts were not passed to aid corporations which wilfully and intentionally omitted to construct their roads, but to aid such corporations as were unable, from some cause, to construct them. Nor was the act of 1875 intended for a corporation which, at the time of its passage, was in default for not building its road within the time limited in its charter. It expressly applied to corporations which may have been unable, from any cause, to construct their roads within the times limited in their charter or articles of association; and the extension was for a further term of two years beyond the time thus limited, and not an extension of two years from the time of the passage of the act. The further extensions in the subsequent acts were simply for a further term of two years beyond the times theretofore limited. So that if these three acts could be held to apply to the defendant, .their combined effect, at most, would be to extend the time for the construction of its roads for six years from the 1st day of October, 1861.

But even if we were to hold that these extensions applied to this company so that it was not in default until two years after the passage of the act of 1882, then for several years thereafter, without any reason whatever, so far as appears in this record, it had omitted to exercise its franchises and was liable to the condemnation visited upon it by the judgment of the special term.

The power of the court to declare the franchises of the defendant forfeited for non-üser is undoubted. Code of Civ. Pro., § 1799; People v. Turnpike Co., 23 Wend., 204; People v. Troy House Co., 44 Barb., 625; People v. Railroad Co., 53 Barb., 98; Matter of Jackson Ins. Co., 4 Sandf. Ch., 559; People v. Dispensary Society, 7 Lans., 304; Ward v. Insurance Co., 7 Paige, 294; Conrad v. Trustees of Ithaca, 16 N. Y., 158; People v. Albany, etc., R. R. Co., 24 id., 261; Denike v. Lime, etc., Co., 80 id., 599; Moore v. Brooklyn City R. R. Co., 108 id., 104; 13 N. Y. State Rep., 97; State v. Hartford, etc., R. Co., 29 Conn., 539; People v. Louisville, etc., R. R. Co., 120 Ill., 49; Thomas v. Railroad Co., 101 U. S., 84; Chicago Life Ins. Co. v. Needles, 113 id., 580.

This defendant should not stand in the streets of Brooklyn claiming franchises which for many years it refused to use, and thus bar out other railroads which might be constructed for public convenience and accommodation. If these franchises are of no value it is not harmed by the judgment of the special term. If they are valuable and of growing worth, it should have discharged its duty to the public by using them.

We are, therefore, of opinion that the judgment of the general term should be reversed and that of the special term affirmed, with costs.

All concur, except O’Brien, J., taking no part.


text:
    Patrick Fenton, Adm’r, Resp’t, v. The Second Avenue R. R. Co., App’lt.

      (Court of Appeals,

      Filed March 10, 1891.)

    1. Negligence—Contbibtjtoey.
    Plaintiffs intestate, a boy of ten, started to run diagonally across the street twenty feet in' front of defendant’s car, and when he reached the track stumbled and fell about ten feet in front of the horses and was run over, and was so injured that he died. The driver applied the brake, but not in time to prevent the accident. Meld, that the death of the boy was due to his own carelessness, or was a pure accident, and in either event defendants could not be held responsible.
    3. Same.
    Street railway cars have a preference in the streets, and while they must be managed with care so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way.
    Appeal from judgment of the supreme court, general term, Erst department, affirming judgment for plaintiff entered upon verdict

      Aug. S. Hutchins and Waldo Hutchins, for app’lt; Fm. M. & ■James M. Lyddy, for resp’t

       Reversing 39 N. Y. State Rep., 963.

   Earl, J.

This action was brought by the plaintiff to recover damages for the death of his son, the intestate, alleged to have been caused by the carelessness of the defendant on the 7th day of April, 1888. The material facts are as follows: The defendant operated its horse railroad through Second avenue in the city of New York Between eleven and twelve o’clock on the day named one of the defendant’s cars was coming up the avenue, and while it was crossing East 25th street, the intestate started from the north west corner of the street apparently to run diagonally across to the south east corner, and when he reached the westerly rail of the track upon which the car was running he stumbled and fell on the track in front of the horses, and a portion of the car passed over him, and he was so injured that he died. He was an intelligent, strong, healthy lad, nearly ten years old and perfectly familiar with the locality, the railroad and its operation. There was nothing to obstruct his view of the approaching car, which was approaching at the usual rate of speed, the horses attached thereto trotting, and the only carelessness alleged against the defendant is that the driver did not stop the car in time to save the life of the intestate. Two witnesses were called as to the accident on the part of the plaintiff. The first, Bedlés, who at the time was standing near the north east corner of the street, testified that he saw the car coming and perceiving the danger to the boy, hallooed to the car; that he saw the boy running stumble and fall from ten to fifteen feet in front of the horses, and that he hallooed at the time the boy fell; that there were two drivers on the front platform of the car; that they were looking up street and did not apply the brake until the car struck the boy. The other witness, Barron, was at the south west corner and. testified that he saw the boy-look up and down the avenue and start on a run to cross it; that he saw him stumble and fall at the west rail of the track; that he attempted to get up, and before he could do so was struck by the-horses, which were about twenty feet away from him when he fell; that he heard the hallooing bv Bedles and that the brake was not applied until the horses struck the boy.

On the part of the defendant the two drivers who were on the front platform of the car were called, one of whom was a driver of nine years’ experience, who was there to aid or instruct the driver who had first commenced to drive on that day ; and they testified that two passengers were with them on the platform; that, they did not hear Bedles halloo and did not see the boy until he had fallen in front of the horses, and that then they immediately applied the brake and arrested the motion of the car as soon as-possible. McCandless, who was a passenger on the front platform, testified that he saw the boy run to cross the track and saw him stumble and fall about ten feet in front of the horses, and that, the drivers immediately applied the brake and arrested the movement of the car as soon as possible. Dunham, the other passenger upon the front platform, testified that he saw the boy running from the west side of the street and saw him fall on the track, and that the drivers applied the brake as quick as they could, and that he thought the boy fell about eight feet in front of the horses. It does not appear that either of these passengers heard Bedles halloo.

If it be assumed that the boy fell twenty feet in front of the horses, as testified to by one of the plaintiff's witnesses, then the horses going at the usual rate of speed, assuming it to be six miles an hour, would have reached him in about two seconds, and that was all the time the drivers had to see the peril, apply the brake and arrest the motion of the car before reaching him, and there is no evidence that by the exercise of all the vigilance that the law requires of drivers under such circumstances they could, after .the boy had fallen upon the track, have arrested the car in time to save him from injury. ■ If it be assumed that they saw him as he approached the track, they had the same reason to suppose that he would get across that he had; and he probably would have crossed in front of the horses in safety if he had not fallen.^ No negligence can be attributed to the drivers because they did not apply the brake before the boy fell, because then, for the first time, the peril commenced and became apparent. ^

^ This accident did not happen at a street crossing, but between the upper and lower crossings of the street, and hence the drivers did not have the same reason to expect anyone there as at a street crossing.

There was nothing requiring this boy to run across the track at this particular place and time. If he had walked he probably would not have fallen, and if he had waited two or three seconds the car would have passed and he could then have gone over the ¡street in safety. Street railway cars have a preference in the streets and while they must be managed with care so as not to carelessly injure persons in the street, pedestrians must, neverther less, use reasonable care to keep out of their way. The unfortunate death of this boy was due to his own carelessness, or it was a pure accident, and in either event the defendant cannot be held responsible for it

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.


author: Finch, J.

text:
    Laura Wooden, Resp’t, v. The West. N. Y. & Penn. R. R. Co., App’lt.

      (Court of Appeals,

      Filed March 10, 1891.)

    1. Negligence—Parties—Lex loci.
    Plaintiff's husband was a brakeman in defendant’s employ, and was killed while in the performance of his duties in the state of Pennsylvania. The statute of that state provides that the widow may maintain the action and the damages shall go to tie widow and children in the proportion that they would take other personal property in case of intestacy, while the statute of this state provides for the bringing of such action by the executor or administrator. Held, that the two statutes were of similar import, and that a complaint in an action in this state is not demurrable because brought in the name of the widow.
    '2. Same.
    The fact that in Pennsylvania there is no restriction upon the amount of damages, while in this state they are limited to $5,000, is a limitation upon the discretion of the jury in fixing the amount of damages, but not on the right of action.
    Appeal from judgment of the superior court of Buffalo, general term, overruling demurrer to plaintiff’s complaint.

      John G. Milburn, for app’lt; Harlow 0. Curtiss, for resp’t.
   Finch, J.

This appeal is from an interlocutory judgment overrnling a demurrer and determining that the complaint assailed stated a good cause of action. That pleading alleged that the plaintiff was and is a resident of this state, and the defendant a corporation created and existing under our laws. The contest thus is between a resident individual and a domestic' corporation. The latter owned and operated a line of railroad extending beyond our boundaries into the adjoining state of Pennsylvania, and the complaint alleged that in that state the plaintiff’s husband was killed by the negligence of the defendant company. The complaint further averred that the statutes of that state gave a right of action for the injury sustained by the widow and children; that the remedy could be enforced in the name of the former as plaintiff, but for her own benefit and that of the children, and that such statute was of similar import to that existing in our own jurisdiction. Judgment was thereupon demanded for damages in the sum of $20,000.

The demurrer interposed raised two objections: 1st That the statutes of the two states were not similar, but different; and 2d. That the action could not be maintained herein the name of the widow,, but only in that of an executor or administrator of the deceased, and the final result sought to be established was that the widow could not maintain an action in this state because that is contrary to our statute, and that the administratrix could not, because that, is contrary to the Pennsylvania statute, and so there is no remedy whatever in our jurisdiction.

Certain propositions essential to the inquiry before us have been explicitly determined in McDonald v. Mallory, 77 N. Y., 546, and need no other citation for their support. That case held that the libility of a person for his acts, whetcr wrongful or negligent, depends in general upon the law of the place in which the acts, were committed; that actions for injuries to the person in another state are sustained here without proof of the lex loci because they are permitted by the common law which is presumed to exist in the i'oregin state; that such presumption does not arise where the right of actibn depends upon a statute which confers it; and that, in such case, the action can only be maintined here by poof that the statutes of the state in which the injury occurred give the right of action and are similar to our own.

Upon the question of similarity we have also held that the two-statutes need not be identical in their terms or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle and possessing the same general attributes. Leonard v. Columbia Steam Nav. Co., 84 N. Y., 53. It is quite evident that the two statutes are of similar import. They are founded upon the same principle, are aimed at the same evil, construct the same sort or kind of action, and give it for the benefit of the same class of individuals. In both the utter failure of redress at common law where the injury ended in death was the injustice for which a remedy was enacted; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out.

The first is that by the lex loci the proper person to bring this action, and the only person who can maintain it, is the widow. While by our law the right of action is given to the executor or administrator. But it is given to the latter not in his broad representative character, but solely as trustee, in a case like the present, for the widow and children. Hegerich v. Keddie, 99 N. Y., 267. It is not a right which survives to the personal representatives, but a right created anew. The real parties in interest, those whose injury is redressed, whose right is vindicated, to whom all damages go, are one and the same in both forums. If the formal parties are different, the substantial and real parties are identical, and the difference in the trustee appointed by the law to represent their right is not such a difference as to bar our tribunals from their jurisdiction, or make the two statutes dissimilar under the rule.

It is claimed, however, that even in that event the right of action accruing in the place of the transaction can only be cnforced in. our jurisdiction under our remedial forms, and so should have been brought by the plaintiff, not as widow, but as administratrix, to which office she had been appointed in this state. But it must not be forgotten that the cause of action sued upon is the cause of action given by the lex loci and vindicated here and in our tribunals upon principles of comity. 84 N. Y., 53, supra. That cause of action is given to the widow in her own right and as trustee for the children, and we open our courts to enforce it in favor of the party who has it and not to establish a cause of action under our statute which never, in fact, arose. We refer to the lex fori and measure it by, and compare it with, the lex loci, I think, for two reasons: One that the party defendant may not be subjected to different and varying responsibilities; and the other that we may know that we are not lending our tribunals to enforce a right which we do not recognize, and which is against our own public policy ; and we do not refer to our law as creating the cause of action which we enforce. It is the cause of action created and arising in Pennsylvania which our tribunals vindicate upon principles of comity; and, therefore, must be prosecuted here in the name of the party to whom alone belongs the right of action; and that rule the courts of Pennsylvania enforce where the cause of action arises here, by permitting it to be brought by the executor or administrator to whom by our law the right is given, although not by their own. Usher v. West Jersey R. R. Co., 126 Pa. St., 207.

But the second difference relied on is that in Pennsylvania there is no restriction upon the amount of damages which may be recovered, while in our state they cannot exceed $5,000. That restriction pertains to the remedy rather than the right Dennick v. Central Railroad of New Jersey, 103 U. S., 11. It is a limitation upon the discretion of the jury in fixing the amount of damages, but not upon the right of action or its inherent elements and cnaracter. The restriction indicates our public policy as to the extent of the remedy, and the plaintiff who chooses to avail herself of our remedial procedure must submit to our remedial limitations, and be content with a judgment beyond which our courts cannot go. They cannot exceed it in a case arising here, and no principle of comity requires them to enlarge the remedy which the plaintiff voluntarily seeks.

There may be, there very possibly is, an exception to that rule, resting upon its own peculiar reasons, in a case where the defendant is not, as here, a domestic corporation, formed under our law and so entitled to the benefit of our remedial limitations, but is a corporation of the state within whose jurisdiction the cause of action arose, and by whose law no restriction upon the amount of damages is permitted or enacted. We do not decide that question ; but the same reasoning which would expose such a corporation to the law of its own jurisdiction would serve equally to justify the right of the domestic cornoration to be protected by the remedial limitations of its jurisdiction. The difference between the two statutes, therefore, does not strictlv affect the rule of damages, but rather the extent of damages, and that extent, as limited or unlimited, does not enter into any definition of the right enforced or the cause of action permitted to be prosecuted. And so the causes of action in the two forums are not thereby made dissimilar. These views lead to an affirmance of the interlocutory judgment.

That judgment should be affirmed, with costs, but with leave to the defendant to withdraw the demurrer and plead anew within twenty days after service of a copy of the judgment entered upon filing the remittitur, and upon payment of the costs of the action from the interposition of the demurrer to that date.

All concur.

       Affirming 35 N. Y. State Rep., 685.