Wolf v. Third Avenue Railroad

67 A.D. 605, 74 N.Y.S. 336

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinion

Laughlin, J.:

The action is brought to recover damages for personal injuries sustained by the plaintiff in stepping from a car on the Third avenue line into an open trench at One Hundred and Fifth street at about eleven o’clock at night on the 15th day of November, 1898. The individual defendants were copartners engaged in the contracting business under the firm name of Naughton & Co. It was alleged in the complaint and admitted by the answer of the contractors that they were engaged in digging a subway along Third avenue for the purpose of laying a subway electric road for the use and benefit of the Third Avenue Railroad Company. The evidence shows that the work was commenced at One Hundred and Twenty-fourth street on the 1st day of November, 1898, and continued southerly. Upon either side of the track next to the outer rail and between it .and the elevated railroad pillars a trench, about three feet and a half in width and three feet and one inch in depth, was excavated. At the time of the accident the trenches had been thus completely or partly opened down to One Hundred and Fourth street, and the work was in progress in various stages of completion between that point and One Hundred and Twenty-fourth street. On commencing the work at each intersecting street, the southerly half of the street was barricaded and crosstown travel was confined to the northerly half. When the contract work on the southerly half of the intersecting street was completed, the trenches were bridged over and that part of the street was thrown, open to public travel. Each of the so-called bridges consisted of five timbers, six by twelve and thirty feet in length, extending from the elevated railroad pillars in the middle of the street southerly to or across the crosswalk. The evidence indicates that, from a railing placed across the southerly end of the bridge next the open trench, a rope was extended on either side to the elevated railroad pillar next southerly. The northerly half of the street was then barricaded by a rope running from the elevated railroad pillar in the middle of the intersecting street upon either side of the car tracks to the next northerly pillar of the elevated road. The trenches across the northerly half of the street were then excavated and the work proceeded -with. This was the method employed along the entire work, and at the time of the accident this was the condition of the crossing at One Hundred and Fifth street and at each intersecting street between One Hundred and Fourth and One Hundred and Twenty-fourth streets, except that there were not elevated railroad pillars at some of the crossings. In each block the trenches were open between the southerly end of the bridge at one street and the northerly end of the bridge at the next street to the south, and a rope extended this entire distance along the line of the elevated railroad pillars upon either side. The work across the southerly half of One Hundred and Fifth street was commenced on the eleventh of hTovember, and it had been completed and the bridge erected on the fourteenth; but the bridge was not completed until the fifteenth; ■ The work across the northerly half was under way and travel thus cut off therefrom, but the trench in that part-of the street had not been excavated to the full depth. The evidence on the part-of the contractors indicates that it was customary at night to suspend a . red - lantern • from each elevated pillar in the middle of intersecting streets and from the rope upon either side midway between the pillars along the line of excavation.

The plaintiff entered the car at Eighty-seventh or Eighty-eighth street, accompanied by her sister, who paid their fare as passengers. The sister testified: “ We rode on the car to 105th street. When we got to 105th street I told the conductor to stop the car. He. stopped it.” Plaintiff testified that her sister told the conductor to let them off at One Hundred and Fifth street, and with respect to where the car stopped she said: It “ must, have been below the crosswalk; I don’t know where it stopped. * * * I didn’t see where it stopped at the time.” This is substantially the only evidence as to where the car stopped. They both testified that the car came to a full stop and that' plaintiff preceded her sister in alighting. It was an ordinary closed car and plaintiff alighted from the rear platform on the right-hand or easterly side. The plaintiff testified that no warning was uttered to -her by the conductor or any one; that' she did not remember where the conductor was; that she looked ahead of her when she came out and did not see the trench or any rope or red lanterns such as are used about excavations, and that, as she stepped from the car she felt herself “ going through the air and disappearing.” The testimony of the sister shows that when she came out on the platform- the conductor told her to look out and caught her by the arm; that she was following behind the plaintiff whom she saw step off and disappear in the trench, but that she did not hear the conductor say anything to the plaintiff. Although the car was lighted the evidence showed that it was very dark where the plaintiff stepped off.

It is contended by the contractors that the plaintiff was guilty of contributory negligence. It is plain that that was a question for the jury. (Scanlon v. City of Watertown, 14 App. Div. 1.)

It will be observed that the evidence does not show definitely where the car stopped. The counsel for the railroad company contends that it stopped at the north crosswalk, and the counsel for the contractors claims that it stopped either above or below the bridge which covered the trench across the southerly half of One Hundred and Fifth street. It is manifest that when the car stopped the rear platform was not opposite the bridge, but was opposite the open trench into which plaintiff was permitted to step in the darkness of the night.

The railroad company did not call its conductor or motorman or account for their absence. In these circumstances the jury were warranted in finding negligence on the part of the railroad company either for stopping the car opposite the open trench and by .implication inviting plaintiff to alight therefrom without notice or warning, or for not properly guarding the trench which it had caused to be excavated in a public street for its own benefit. (Maverick v. Eighth Avenue R. R. Co., 36 N. Y. 378; Storrs v. City of Utica, 17 id. 104; Pettengill v. City of Yonkers, 116 id. 558; Deming v. Terminal Railway of Buffalo, 169 id. 1.)

Of course the doctrine of respondeat superior would not apply and the railroad company would not be liable for the negligent acts of the contractors or their servants in the immediate performance of the work (Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, 8 id. 222; Kelly v. Mayor, 11 id. 432), but that would not relieve the railroad company from its duty to the public to exercise reasonable care to guard the excavation.

The contractors urge their exceptions to the refusal of the court to nonsuit and direct a verdict as to them upon the ground that they were not guilty of negligence. Their contract with the railroad company required them to place and keep at night along the-line of the excavation suitable and sufficient lights, and. to at all ■times place and keep suitable and sufficient guards and take all other - proper precautions for the prevention of accidents. They claim . that their entire duty to people boarding or alighting from cars was discharged by the construction of the bridge as described, which they say constituted proper facilities for the discharge of people-from the street cars. The evidence showed that the customary place for north-bound cars to stop was at the- northerly crosswalk of the - intersecting streets, and that the division superintendent and engineer-in charge of the construction for the contractors were familiar with this custom. With the exception of the bridge, which was only about the length of a car, the trenches were entirely open and unprotected,, except by the ropes and lights which were on the. outside or sidewalk side. The evidence would have justified .the jury in finding that this car was stopped with the rear platform, not ■ far from the-northerly or southerly end of the bridge. We think it cannot be-said as .matter of law-that the contractors discharged their entire-duty in covering the trench for this short space, leaving the safety of the .passengers desiring to alight to depend upon the accuracy of the . judgment of a . motorman in endeavoring to stop the car at night so that the rear platform would be opposite the bridge.. The record contains no evidence of a license from the proper authorities-to the street railway company or to the contractors to open this street,, but the question was not raised upon the trial and it appears to have been assumed that the work was lawful. Naughton & Oo. were-not the servants or agents of the railway company, but were independent contractors. In thus excavating and leaving open trenches •in a public street they owed a duty to .the traveling public, including those desiring to alight from street cars, to exercise reasonable- . care to guard the trenches or give them notice or warning of the-danger. (Blake v. Ferris, 5 N. Y. 48; City of Buffalo v. Holloway, 7 id. 493 ; Charlock v. Freel, 125 id. 357; Rosenhain v. Galligan, 5 App. Div. 49; Sexton v. Zett, 44 N. Y. 430.) They recognized this duty and .attempted to perform it by the construction of the bridges, the erection of the ropes,, placing lights and stationing a watchman at night at each intersecting street and employing a. roundsman to patrol the street to see that the watchmen performed. their duty. The watchman at this crossing was not called, but evidence was given tending to show that the contractors were unable-to locate him. It was his duty, according to the testimony of the division superintendent, “ to specially look after this open place here because people would cross there; wagons would cross; cars came-along. The regular place of stopping cars was on the north crosswalk going north. There was not any north crosswalk there, so that the watchman had to look lively. The trench ran right up close tethe car. All night if there was any crosswalk the watchman’s duty was to try to prevent accidents along the line of the trench.” It further appeared that it was the duty of the watchmen to look after the lights between as well as at the.crossings, and this duty sometimes: called them away from the crossing. The roundsman testified that there were six lights at this crossing, one at each corner, making four in front of the trench and two between the tracks ; that in making his rounds he passed the crossing two or three times that evening; and observed that these lights were burning. The division superintendent testified to the custom of placing the lights, but did not remember whether he saw the lights there on the night, of the accident. The engineer also testified to the custom, and said that in November they began to put the lights on at about half-past five; that he did not notice anything wrong with the lights, but that he had no special charge concerning them except to report if he discovered anything out of order, and that he left the work between four and five-thirty p. m.

An exception was taken to the refusal of the court to charge that-the contractors were not bound to exercise care to prevent persons, from stepping off the car into the trench, if they had provided proper bridges for the passengers to alight upon. The court had specifically charged that the contractors were not liable if they sufficiently guarded the trench with lights. The question as to-whether there were any lights at the time of the accident was in controversy. The purpose of this request was to have the jury instructed that if suitable and sufficient bridges were provided to enable those in charge of the street cars, by the exercise of ordinary care, to stop the cars with the platform opposite these bridges, and enable the passengers to alight in safety, then the contractors had fully discharged all obligations resting upon them. We are of opinion that this request should have been charged and the refusal was prejudicial error which requires a reversal of the judgment as against the contractors.

The plaintiff alleged that by reason of the fall her ankle and wrist were sprained and that she received bruises about her body and ■limbs, .“ and as she is informed, injuries of ah internal .nature which may be permanent.” No motion was made to have the. complaint made more definite and certain as to the injuries and no bill of particulars thereof was furnished. She testified that she was lifted out of the trench, taken to the corner of One Hundred and Fifth street and placed in a chair; that her left hand was bleeding; that she could not step on her right foot very well.and had pain in her abdomen ; that she was assisted to her brother’s drug store at the corner of One Hundred and Fifth street and Second avenue, and was then suffering from much pain in her hand, foot and abdomen ; that she was then taken to No.. 231 One Hundred and Sixth street, where she resided, and was undressed and put to bed ;■ that she did not rest well and suffered pain during the night in her abdomen and all over her body; that she was bruised on her thiglq wrist and hands.; that she was confined to her bed about five weeks and- suffered similar pain during all that .time; that she Avas confined to her house seven or eight Weeks, and since that time continued to suffer pain in her abdomen and back; that.at her menstrual period the pain was such that she Avas unable to arise. She then Avas permited to testify, under objection and exception taken by both appellants, upon the ground that it was not pleaded, that she also had suffered headaches and was unable to retain food for several days; that she never before the accident had any such ailment or pain in her abdomen; that prior to the accident her menstruation was regular but that it had been sometimes- irregular since. Her attending physician, who Avas called the morning after the accident, after describing the external bruises and injuries, testified, under similar objection and exception by appellant, and the further objection that the injuries Avere not shown to have resulted from the accident, that he examined plaintiff internally also and found her suffering from inflammation of the womb, and that a week before the, trial he found her suffering from chronic inflammation of the womb'; that.an operation known as curetting the womb is required and. necessary, and was advised by him to heal this ailment. A specialist in gynecology was called, and testified that on an examination made shortly before the trial he found plaintiff suffering from chronic inflammation of the womb, and that the uterus was more or less fixed in the pelvis by adhesion resulting from the inflammation, and he was permitted to testify, under like objections and exception, that the proper treatment for her relief was a curetting operation, and also the opening of the abdomen and breaking up or removal of the adhesion. The evidence failed to show that plaintiff’s injuries were permanent, and the court instructed the jury that she should only be awarded fair and reasonable compensation for the pain and suffering she has endured, and that she should not recover any damages for future pain and suffering. Counsel for the railway company then requested the court to charge the jury that they could award no damages for injury to the womb, it not having been shown that they resulted from the accident. This was declined, and both appellants excepted. The appellants urge a reversal upon these exceptions.

The allegations of the complaint are sufficiently broad to include the injuries to the womb. (Ehrgott v. Mayor, 96 N. Y. 278; Tracey v. Metropolitan St. Ry. Co., 49 App. Div. 197.) The testimony of the plaintiff to the effect that from the moment of the accident she has suffered pain in the abdomen such as she never experienced before, was sufficient, if believed by the jury, in' the light of the medical evidence, to warrant the inference that the pain emanated from the womb and that the inflammation of that organ disclosed by the medical examination resulted from the accident, If the plaintiff had submitted before the trial to the operation which the physicians advised, and one characterized as the treatment “ necessary ” and “ required,” and the other as “ proper ” to relieve her pain, and the jury believed that a reasonably prudent person would have submitted to the operation, the plaintiff could have recovered therefor; and it appearing that without such operations the pain would continue indefinitely, and such operations are common and usually successful—we think the evidence was competent. (Blate v. Third Ave. R. R. Co., 44 App, Div. 163; Cumming v. Brooklyn City R. R. Co., 38 Hun, 362; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77; Feeney v. Long Island R. R. Co., 116 id. 375, 382; Griswold v. N. Y. C. & H. R. R. R. Co., 115 id. 61; Strohm v. N. Y., L. E. & W. R. R. Co., 96 id. 305; Filer v. New York Central R. R. Co., 49 id. 42.) Furthermore, the jury having been explicitly instructed, more favorably to appellants than the circumstances warranted, that plaintiff was not entitled to recover for any future pain or suffering, and the charge having confined the award for pain and suffering to the period preceding the trial, it does not appear that appellants were prejudiced by this, evidence.

We.have examined the other exceptions, but they do not require extended consideration. The appellants also press their, motion for a new trial, on the ground that the damages awarded áre excessive. Plaintiff was a married woman twenty-nine years of - age, and according to her evidence, which was supported by the testimony of the physicians and accepted as truthful by the jury, she suffered much pain during the period of nearly two years and a half, from the date of the accident to the time of the trial. • We would not be justified, in granting, a new trial or reducing the verdict upon this ground.

These views lead to the conclusion that the judgment and order should be affirmed, with costs, as against the street railroad company, and reversed and a new trial granted as to the contractors, with' costs to them to abide the event.

Van Brunt,. P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs, as against the Third Avenue Railroad Company, and judgment reversed, new- trial ordered as to defendants Naughton and McMahon, with costs to them to. abide event.

Note.— The rest of the cases of this term will be found in volume 68 App. Div.— [Rep.