Foster, J.
The cause has been ably argued by the respective counsel, and several adjudged cases have been referred to, to sustain the positions which they have advanced ; but although the questions pending in the case are important, and of much interest to the parties and to the public at large, the difficulty of the case lies more in the -determination of the true character of the train in question, than in the rules of law applicable to it, when that character is ascertained.
If it was a freight train merely, upon which the company unwillingly permitted persons occasionally, in cases of emergency, or for the particular accommodation of such persons, alone, to ride thereon, then the company owed no duty towards them which has not been performed; and on the other hand, if it was a passenger train as well as a freight train, intended by the defendant for the trans[36]*36portation of way passengers as well as of cattle, or other freight, then I think it owed a duty to the passengers which has not been performed.
The real question therefore is, was this a freight train merely, or a passenger train as well as a freight train. An ordinary freight train is intended exclusively for the transportation of property and such employees of the company as are deemed necessary to transact the business of the train on the road. It never has a passenger car attached to it, except when some peculiar and uncommon circumstance renders it necessary. It has quite frequently and generally a small car at its rear end, which in this case I find is called a “ cab.,” sufficient to carry the employees of the company, in which it sometimes happens that a passenger is admitted. There are also trains which are denominated “ cattle trains," and they too usually have a “ cab ” attached, for the use of the employees of the road and of the owners or agents having the cattle in charge, and usually such trains are confined to the carrying of such employees and persons having charge of the cattle; though it sometimes happens that other passengers are carried in such trains. Such trains are undoubtedly freight trains; and it cannot be expected that the company should owe any duty to passengers who apply to ride on them, except to use ordinary care, in their behalf, while they are on board of the train.
Such trains have a conductor, whose business it is to see that the train has proper dispatch, and who has charge of the business connected with the freighting, but has no authority to' admit on board such train, as passengers, persons who are not connected with the freight which he carries,- or others, except by the direction of some superior officer of the company; and hence it is, that, as to passengers on such trains, there is no such obligation towards them as is the case in regard to those on passenger trains, and such trains, if through trains, stop only when'by the [37]*37time tables of the company it becomes necessary for them to get out of the way of faster trains, running behind them, on the same track, or when necessary for taking on wood or water.
Was the train in question mainly or essentially of the above character ? It ran every afternoon and evening from Rochester to Syracuse. It had an ordinary passenger car attached, which, of course, could contain at least fifty passengers. It had a conductor, who, in addition to his agency, in regard to the freight, was accustomed, at all his stopping places, to take on all passengers who applied to him to be carried on the road. He was empowered to collect the usual fare from such passengers, and he was authorized to and did collect the tickets of such persons on the train as had procured them, before entering the train. He stopped at all the way stations between Rochester and Syracuse; and he carried all passengers, male and femaló; and no special application was necessary to obtain a seat on board the passenger car. In short, though the main business of the train was to carry cattle, it was a part of its regular business, daily, to carry such passengers as applied. In my judgment, whatever the company chose to denominate, the train it was really a freight and passenger train.
Its character, as a passenger train, did not depend upon whether it was drawn up and stopped before the ticket office, at the several stations where it halted; and I think the court erred in supposing that if it was a passenger train, the company was bound to have the passenger car stopped in front of the station house. I am not aware that such is the duty of the company, in any case; nor can they, in most cases, do so with all of their passenger trains. Ordinarily some of the cars of, a passenger train are stopped in front of the station house; but whenever the train is large, as is very often the case, sometimes containing a dozen or more cars, the most of the train will [38]*38be stopped nearly as far from the station as was the passenger car in question. My opinion is, that in regard to passenger trains, the duty of the company is to so stop its cars that passengers shall have easy and safe access to and from the train, and the nearest streets or other avenues of travel.
I do not consider it a material circumstance that the company did not check baggage for the passengers on 'that train, or that the passengers were left to take charge of it themselves. It is certain that they never refused or declined to carry the passenger and his baggage on board of the train; and if they invited passengers to take that train, it may be a serious question whether the statute did not require them to check all such baggage. But it is not important to determine that question here, and I therefore do not discuss it.
Is it correct to say that the railroad company did not invite passengers to take that train, or that the train was so run exclusively for the accommodation of freight ?
How is a railroad company to invite passengers to their trains except by providing suitable accommodations for them to ride; stopping so that they may get the trains; and taking and carrying all who apply? How élse do they invite passengers to their trains? "W"e know, as matter of fact, that they invite passengers to them, by putting up in their ticket offices time tables, stating the regular time for trains to pass the several stations; and as matter of fact, though not testified to in the case, that the train in question was entered on their time table.
But how can it be assumed, legally, that the passenger car of that train was not attached to it solely for the accommodation of passengers ? The company ran express trains on its road, which stopped only at the more important stations. It ran also way mail trains and other accommodation trains, which stopped at all stations; and which took up and left passengers at points where the express [39]*39trains did not stop, as well as at others. And the train in question, running as it did for eighty-one miles, performed the office of an accommodation passenger train, and for aught the case discloses, saved the necessity of running-one more train, devoted exclusively to the business of an accommodation passenger train. And I think we are not . authorized in coming to the legal conclusion that a railroad company runs any of its trains for the benefit solely of others, at a pecuniary loss or inconvenience to itself.
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Foster, J.
The cause has been ably argued by the respective counsel, and several adjudged cases have been referred to, to sustain the positions which they have advanced ; but although the questions pending in the case are important, and of much interest to the parties and to the public at large, the difficulty of the case lies more in the -determination of the true character of the train in question, than in the rules of law applicable to it, when that character is ascertained.
If it was a freight train merely, upon which the company unwillingly permitted persons occasionally, in cases of emergency, or for the particular accommodation of such persons, alone, to ride thereon, then the company owed no duty towards them which has not been performed; and on the other hand, if it was a passenger train as well as a freight train, intended by the defendant for the trans[36]*36portation of way passengers as well as of cattle, or other freight, then I think it owed a duty to the passengers which has not been performed.
The real question therefore is, was this a freight train merely, or a passenger train as well as a freight train. An ordinary freight train is intended exclusively for the transportation of property and such employees of the company as are deemed necessary to transact the business of the train on the road. It never has a passenger car attached to it, except when some peculiar and uncommon circumstance renders it necessary. It has quite frequently and generally a small car at its rear end, which in this case I find is called a “ cab.,” sufficient to carry the employees of the company, in which it sometimes happens that a passenger is admitted. There are also trains which are denominated “ cattle trains," and they too usually have a “ cab ” attached, for the use of the employees of the road and of the owners or agents having the cattle in charge, and usually such trains are confined to the carrying of such employees and persons having charge of the cattle; though it sometimes happens that other passengers are carried in such trains. Such trains are undoubtedly freight trains; and it cannot be expected that the company should owe any duty to passengers who apply to ride on them, except to use ordinary care, in their behalf, while they are on board of the train.
Such trains have a conductor, whose business it is to see that the train has proper dispatch, and who has charge of the business connected with the freighting, but has no authority to' admit on board such train, as passengers, persons who are not connected with the freight which he carries,- or others, except by the direction of some superior officer of the company; and hence it is, that, as to passengers on such trains, there is no such obligation towards them as is the case in regard to those on passenger trains, and such trains, if through trains, stop only when'by the [37]*37time tables of the company it becomes necessary for them to get out of the way of faster trains, running behind them, on the same track, or when necessary for taking on wood or water.
Was the train in question mainly or essentially of the above character ? It ran every afternoon and evening from Rochester to Syracuse. It had an ordinary passenger car attached, which, of course, could contain at least fifty passengers. It had a conductor, who, in addition to his agency, in regard to the freight, was accustomed, at all his stopping places, to take on all passengers who applied to him to be carried on the road. He was empowered to collect the usual fare from such passengers, and he was authorized to and did collect the tickets of such persons on the train as had procured them, before entering the train. He stopped at all the way stations between Rochester and Syracuse; and he carried all passengers, male and femaló; and no special application was necessary to obtain a seat on board the passenger car. In short, though the main business of the train was to carry cattle, it was a part of its regular business, daily, to carry such passengers as applied. In my judgment, whatever the company chose to denominate, the train it was really a freight and passenger train.
Its character, as a passenger train, did not depend upon whether it was drawn up and stopped before the ticket office, at the several stations where it halted; and I think the court erred in supposing that if it was a passenger train, the company was bound to have the passenger car stopped in front of the station house. I am not aware that such is the duty of the company, in any case; nor can they, in most cases, do so with all of their passenger trains. Ordinarily some of the cars of, a passenger train are stopped in front of the station house; but whenever the train is large, as is very often the case, sometimes containing a dozen or more cars, the most of the train will [38]*38be stopped nearly as far from the station as was the passenger car in question. My opinion is, that in regard to passenger trains, the duty of the company is to so stop its cars that passengers shall have easy and safe access to and from the train, and the nearest streets or other avenues of travel.
I do not consider it a material circumstance that the company did not check baggage for the passengers on 'that train, or that the passengers were left to take charge of it themselves. It is certain that they never refused or declined to carry the passenger and his baggage on board of the train; and if they invited passengers to take that train, it may be a serious question whether the statute did not require them to check all such baggage. But it is not important to determine that question here, and I therefore do not discuss it.
Is it correct to say that the railroad company did not invite passengers to take that train, or that the train was so run exclusively for the accommodation of freight ?
How is a railroad company to invite passengers to their trains except by providing suitable accommodations for them to ride; stopping so that they may get the trains; and taking and carrying all who apply? How élse do they invite passengers to their trains? "W"e know, as matter of fact, that they invite passengers to them, by putting up in their ticket offices time tables, stating the regular time for trains to pass the several stations; and as matter of fact, though not testified to in the case, that the train in question was entered on their time table.
But how can it be assumed, legally, that the passenger car of that train was not attached to it solely for the accommodation of passengers ? The company ran express trains on its road, which stopped only at the more important stations. It ran also way mail trains and other accommodation trains, which stopped at all stations; and which took up and left passengers at points where the express [39]*39trains did not stop, as well as at others. And the train in question, running as it did for eighty-one miles, performed the office of an accommodation passenger train, and for aught the case discloses, saved the necessity of running-one more train, devoted exclusively to the business of an accommodation passenger train. And I think we are not . authorized in coming to the legal conclusion that a railroad company runs any of its trains for the benefit solely of others, at a pecuniary loss or inconvenience to itself. All are doubtless aware that including the damage to the rolling stock of a train, and to the rails by the friction caused by breaking up and stopping the train, together with the loss of motive power and motion, and the additional consumption of fuel, and loss of time, all stops of trains are expensive; and the use of this train at its business stopping places, in taking on passengers there, was a material saving of expense to the company, if without, the stopping of this train some other train would have had to stop in its stead; and the only reason why that train did not draw up in front of the station may well be that it was to save the expense of the additional stop necessary to do so.
With the view I have of the case, I think the company was hound to see that there was a safe and commodious passage way from the station or ticket office of the company to the place where the passenger car usually stopped. It is clear to my mind that it did not do so, and therefore the defendant was guilty of negligence; and that such neglect of the company was the cause of the injury which the plaintiff sustained. I am inclined to the opinion that the location of the cattle-guard, in Sodus street, would of itself entitle the plaintiff to recover for any damages which he sustained by falling therein; but I prefer to rest my decision of negligence on the part of the defendant, on the grounds before stated. The court below did not pass upon the question of negligence on the part of the plain[40]*40tiff, but granted the nonsuit upon other grounds; but as the question is raised before us by the counsel for the defendant, it is enough to say that the only ground upon which it is claimed that the plaintiff was negligent is, that by law it was the duty of the company to make and sustain suitable cattle-guards at all road crossings; and that there being a road where this cattle-guard was, the plaintiff was bound to know that law, and bound to presume that the company had made such cattle-guard, and therefore it was his duty to take care and not fall into it. But if it be so, while the party was bound to know that the cattle-guard had been made, it surely ought to follow that he was to suppose it had been constructed nearer the westerly line of the road than eleven feet east of it, and that it was not so constructed as to be dangerous.
[Onondaga General Term,
April 4, 1865.
I think, upon the whole case, there was no negligence on the part of the plaintiff shown on the trial, and that the company improperly constructed the cattle-guard; that by reason of such improper construction the plaintiff was injured; and that, at least, the whole ease should have been submitted to the jury. A new trial should be granted, with costs to abide the event.
Mullin, J., concurred.
Bacon, J., did not sit.
Morgan, J., gave no opinion.
Hew trial granted.
Mullin, Morgan and poster, Justices.]