Rogers v. Trustees of New York & Brooklyn Bridge

42 N.Y.S. 1046

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1896
• Status: Published

Opinion

HATCH, J.

Successive litigation, involving a consideration of the construction of the Brooklyn Bridge at its terminal in the city of Brooklyn, as it existed when the present accident happened and prior thereto, has produced from the courts conclusions which limit the range of discussion. In Langin v. Trustees (not yet officially reported) 42 N. Y. Supp. 353, we said, in substance, that negligence could not be predicated upon the construction and maintenance of the bridge as a structure. In that case the trial court limited the jury to a finding of negligence from a consideration of the single question whether sufficient warning was given of the existence of the open space. We held that this question, upon the facts, was proper to be submitted to the jury, and from which they might find negligence. But the court charged, as a rule of law, that the warning must have been such as to give specific notice to the plaintiff. We held that such rule could not be supported, that the law was satisfied when the warning was such that in the ordinary course it was likely to reach all the passengers as they alighted from tin-cars, and upon this ground we reversed the judgment. So far as negligence could be predicated upon the character of the construction of the bridge was considered in Fox v. City of New York, 70 Hun, 181, 24 N. Y. Supp. 43, and it was there held that negligence could not be imputed from the character of the structure as it had been maintained and used. As thus limited, the questions presented upon this appeal resolve themselves into a consideration of the means used to make it reasonably safe for passengers to pass from the cars to the platform of the bridge, and rulings respecting the admission of evidence upon the-trial and in the submission of the ease to the jury.

The evidence offered by the plaintiff tended to establish that, at the time when she sustained the injuries complained of, the platform of the bridge was not sufficiently lighted to enable her to perceive the open space; and it is fairly to be inferred, from the testimony, that the space between the car and the platform presented to her vision the appearance of a solid support. Her testimony in this regard, taken in connection with the testimony of her other witnesses who speak upon this subject, presented a fair question for the jury to consider as to whether, at the time when she attempted the passage from the car to the platform, the latter was lighted suffieiently to enable her to discover this open space, in the exercise of reasonable care. This view of the case is fairly supported by the authority of Boyce v. Railway Co., 118 N. Y. 314, 23 N. E. 304. The same observations apply with equal force to the question of sufficient and proper care exercised by the defendant in furnishing assistants and giving warning to passengers when departing from the cars at the place where the accident occurred. The evidence required the submission of this question to the jury within the authority of the Langin Case. While in some of its features, bearing upon the question of knowledge of the locality possessed by the plaintiff, the case is not so strong as presented in the Langin Case, yet the case is not so different from the facts of that case as to require the application of a different rule. The court, in its charge to the jury, submitted the question as to whether the defendants exercised reasonable and proper care over the person of the plaintiff at the time of the accident. The court did not, however, in its general charge, assume to define what would be reasonable and proper care, or what acts would constitute the reverse of it. But, upon request of the defendants’ counsel, the court charged specifically upon these questions, and, as we think, correctly, in view of the proof submitted in support of plaintiff’s case.

Upon the trial evidence was permitted to be given of prior accidents occurring at or about the particular place where plaintiff met with the accident. Proof of this fact was made in this wise: Plaintiff called the superintendent of the bridge, and proved by him that, as superintendent, he had made a rule directing the captain of the police force connected with the bridge, and subject to the superintendent’s control, to make a record of all accidents of all kinds that occurred on the bridge, and enter the same in a book to be kept in his office, and to make a report to the superintendent in duplicate the next morning after the accident happened. This system was begun as early as 1S8G, and was continued down to the happening of the accident. Each morning, whenever there had been an accident, the superintendent received a copy of the report, as entered in the book, from the captain of the police. These reports were made and entered in the book by various officers connected with the bridge, who were immediately cognizant of the accident, and each officer signed his name or initials thereto. The handwriting of the report in the book was identified by the superintendent or by the captain of police as being that of an .officer on duty upon the bridge, and who was charged with making the entry. These reports at first were evidently written out by the officer making them. Subsequently, and as early as July 1, 1892, they were made upon blanks furnished for the purpose, and were uniform in character, and in substantially the following form:

“To C. C. Martin, Chief Engineer and Superintendent—Dear Sir: The following took place: Name of injured, -. Residence, -. Property destroyed, -. Character of accident, -. Cause of it, -. Extent of injuries, -. Damage to property,-. If on roadway, which one,-. If on railroad train, give number of car, -. Conductor’s name, -. Residence, -. Who witnessed the affair,—name, residence, and occupation, -, General remarks,-. Signed.”

These blanks, in the reports introduced in evidence, were filled up as indicated by the words used, and in each case it was stated therein, under the heading “Character of the accident,” in varying phrase, ^Slipping or falling between the car and platform.” The reports were, for the most part, signed by “James Ward, Captain, per or by [usually giving initials of signing person].” Some were signed by the policeman who made the report, or by the conductor of the train. Under the heading of general remarks was given a brief account of the circumstances which attended the transaction.

Various voluminous and pertinacious objections to the introduction of these reports, or the books containing them, were interposed by defendants’ counsel, beginning with the offer of the first, and continuing to the reception of the last. The objections which are now urged as fatal to the ruling of the court which received them are: cl) That the testimony was incompetent to establish the fact of other •accidents. (2) The questions allowed were fatally defective in form. (3) The memoranda were not sufficiently authenticated. (4) The testimony was hearsay.

In disposing of this question we are to bear in mind that the trustees act in a corporate capacity, and under a corporate name, and that, during the time covered by the reports, the condition of the bridge, so far as the character of its construction is concerned, remained unchanged, and in practically the same condition. It was under the management of trustees, who acted and continued to act after the right of action against them was by statute transferred from the cities of New York and Brooklyn to the trustees of the bridge. These trastees acted, in the detail of the management of the bridge, through a general superintendent and subordinates, and, in the relation which they bore to the latter, occupied no other or different relation than such as exists between corporations and their servants generally. These trustees are chargeable in the same degree and to the same extent for the acts of their subordinates as would be any other corporation. Any act performed by the servant, which 1 he law would charge as the act of the corporation, is equally chargeable to the trustees; and notice to the servant is notice to the master, in the same legal sense as applies to any other corporation. Measured by this relation, we are to see if these objections can be sustained.

It is a general rule that knowledge of an agent, in a matter within the scope of his duty and function, binds the principal to the same extent as if it were the knowledge of the principal. Holden v. Bank, 72 N. Y. 286. A general superintendent implies general powers of management of the business carried on by the principal, and in the furtherance of that business he has power to regulate, to some extent, •at least, the conduct of his subordinates, and to prescribe rules for their government, and the manner in which they shall perform their duties, and to prescribe what they shall do. In the present case it is quite evident that the detail of the business and management of the bridge required some rules, and, in the absence of any proof limiting the powers of the superintendent, we may assume that he had authority to direct his subordinates, and prescribe what they should do, and to this end require that all accidents should be reported. If he had no such power, we may well assume, in view of the length of time that it had been in vogue, and the propriety of it,. that the trustees themselves had authorized it, and that it became a rule of their own. This rule, therefore, which required reports of these accidents, is to be regarded as required by the trustees themselves, whether it he placed upon the general doctrine that they are chargeable with the act of the superintendent, or that, with knowledge, they have adopted such act. Having required this report, and it having been made and brought to their attention, they are chargeable with its contents, and it becomes evidence against them, for any legal purpose, as an admission upon their part of what it contains; and it is also admissible as an admission of the agent acting within the scope of his authority. 1 Mor. Priv. Corp. p. 78,. § 76; Id. p. 508, § 540a; Holden v. Hoyt, 134 Mass. 181-184; Glidden v. Town of Unity, 33 N. H. 571; Kirkstall Brewery Co. v. Furness. Ry. Co., L. R. 9 Q. B. 468.

The record being admissible, was it competent to establish the fact that other accidents had happened at this place of a similar character. That the entries referred to the place where the present accident happened is without practical dispute. The recital shows that the accidents happened by stepping or falling between the car and the platform. They were, therefore, in their nature similar, varying slightly in detail and cause. We have no doubt that the facts recited show fairly that the accidents were similar in character, within the general signification of that term, and were, therefore, competent evidence, within the authority of Brady v. Railway Co., 127 N. Y. 46, 27 N. E. 368. It is to be borne in mind that this record was kept in all essential respects as a record of the corporation. It may be conceded that such record would not be admissible in its favor, even though properly authenticated by the person who made it. Upon this point, however, we express no opinion. But, as an admission against the corporation, when it was shown to have been made by one of defendants’ officers, and called to the attention of the superintendent, we think it was sufficiently authenticated, even though the person making the entry was not called to. verify it. Bank v. Tisdale, 84 N. Y. 656; Root v. Railway Co., 65. Barb. 619. A very instructive discussion of the question of the admissibility of written memoranda is found in Mayor, etc., of New York City v. Second Ave. R. Co., 102 N. Y. 572, 7 N. E. 905. There the memorandum was held admissible in favor of the party making it, although the person by whom it was made was without personal knowledge of the facts which it contained. The principle announced is applicable in support of the proposition that this record was-sufficiently authenticated. We think, therefore, that the objections cannot be allowed to prevail, that the evidence was competent for the purpose offered, and the record was sufficiently authenticated.

The evidence of Carswell was withdrawn from the consideration of the jury by the court, and the jury was directed to disregard it Assuming that this testimony was improperly received, upon which subject we express no opinion, the manner of its subsequent treatment, and the care taken by the court to expressly call the matter to the jury’s attention, both of its own motion and upon request of defendants, we think, establishes with reasonable certainty that defendants were not prejudiced thereby, and no error was committed therein. Neil v. Thorn, 88 N. Y. 276; Newman v. Ernst (Super. Buff.) 10 N. Y. Supp. 310.

We have examined with care and with such patience as we could command, in vierv of their number, when few only were necessary to present every question of which the case permits, the exceptions taken upon the trial to the admission of evidence and to the charge of the court.

We find no substantial error, and therefore conclude that the judgment should be affirmed, with costs. All concur.