Winterson v. Eighth Avenue Railroad

2 Hilt. 389

• Court: New York Court of Common Pleas
• Decided: April 15, 1859
• Status: Published

Opinion

By the Court, Daly, First Judge.

The complaint recites the particular facts from which the injury proceeded, namely: that while the car was standing to receive passengers, the plaintiff, Maria Winterson, approached it and stepped with one foot upon the step of the car, and took hold of the railing with one hand, intending to get on the car; when the conductor, who was standing on the platform, and saw her attempting to get on, gave the signal for the car to start, at the same time saying to her, “you are too late,” and before she had time to get on the platform, that she was thrown off, and fell upon her face and breast, receivings serious injury. This statement is followed by an averment that the conductor acted in a negligent and culpable manner as aforesaid, and by his wilfulness and gross neglect caused the plaintiff to fall, and that he was guilty of gross and wilful negligence and carelessness. The latter part of the averment may be rejected, and the recital of the facts constituting the cause of action, coupled with the averment that the conductor acted in a negligent and culpable manner, and that the defendants were guilty of carelessness and negligence in having such careless and negligent servants, is an explicit and sufficient averment of a cause of action, proceeding from the negligence of the defendants. If the complaint relied alone upon the averment of a cause of action arising from the wilful act of the conductor, then it would show that the action should have been against him and not against the company, and it would have been the duty of the judge to have granted the motion for a non-suit; but as the acts of the conductor are set forth, and he is averred to have acted negligently, all the averments setting up wilfulness on his part may be disregarded, and a good cause of action will remain. It is sufficient if an averment of a good cause of action against the defendants can be collected from the complaint. If the complaint is double in setting up a cause of action against the servant of the defendants, growing out of his wilful act, and one against the defendants for the servant’s negligence, arising out of the same transaction ; then the defendants should have demurred upon the ground that two causes of action had been improperly joined, (Maxwell v. Farnham, 7 How. 236; Cook v. Chase, 3 Duer, 643), and the plaintiff would have been compelled to elect. Hot having availed themselves of this, which was their proper remedy if the complaint was bad for duplicity, they were not entitled to a non-suit at the trial upon that ground. The only objection they could take to the complaint at the trial would be, that a cause of action could not be collected from it, or that the court had not jurisdiction.

Treating the complaint as averring a good cause of action arising from the negligence of the defendants’ servant, it remains but to consider whether the proof upon the trial showed that the injury was caused by a wilful act of the conductor, or was simply the result of his negligence, and upon that point it is sufficient to say that the question was one eminently fit for the jury, and as the charge of the judge is not given, and was not objected to, we must assume that it was fully submitted to them with all due and proper instruction. It is sufficient for us to say that it does not appear as matter of law upon the evidence that the conductor acted wilfully; that is, with a deliberate intention to injure Mrs. Winterson, ór exhibited that reckless disregard of the life or person of another which is equivalent, or amounts to the same thing, and for which he alone and not the company would have to answer. His own evidence is conclusive upon that point, for the transaction as narrated by. him is to the effect that he was entirely without blame; that the injury was caused by the act of Mrs. Winterson alone, to which he in no way contributed by his negligence or otherwise; in which he was contradicted by the plaintiff’s witnesses, Mr. and Mrs. Gay. One of these witnesses testified that he pushed her, but as the witness afterwards stated what he did, that is, touched her with his hand upon her back while she had hold of the rail, and that she fell, which was also the statement of the other witness. If this raised any doubt as to the nature of the act that caused the injury; that is, as to whether it was wilfully done or not, it was a question for the consideration of the jury, and as they have passed upon it, the judgment must be affirmed.

Judgment affirmed.