GEORGE M. CLYDE, Appellant,
BROOKLYN UNION ELEVATED RAILROAD COMPANY, Respondent.
APPEAL by the plaintiff, George M. Clyde, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of
February, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the same day denying the plaintiff's motion for a new trial made upon the minutes.
Frederick N. Van Zandt [Joseph A. Burdeau with him on the brief], for the appellant.
D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
JENKS, P. J.:
This action is for negligence. The defendant, a common carrier of persons, maintained a passenger station in the borough of Brooklyn situate on the corner of East 16th street and Avenue H, and fronting on the latter way with two entrances thereon. The plaintiff, seeking the single entrance which opened on East 16th street, at 6:15 P. M. on a clear day in June, tripped upon a thin wire which had been stretched along a part of the curb of East 16th street at a distance 10 or 15 inches above the ground. He now appeals from a judgment entered upon a verdict against him at Trial Term.
The plaintiff complained that these streets were public highways of the city of New York. The defendant denied the allegation as to East 16th street. It also answered that it was in possession of said station and the land adjacent under a lease, and that all structures maintained by it were within the boundaries of that land. The learned court charged the jury, without exception, a request for further instruction that upon the proof it did not appear whether East 16th street was a public or a private street, or whether it was land owned by private individuals. We may eliminate from the case the feature of an accident that occurred upon the premises of the defendant. The plaintiff complained that this wire had been set up by the defendant, but the defendant denied it. The instruction of the learned court, attacked by the defendant, considered in the light of the verdict, necessarily requires the conclusion by the jury that the defendant had not put up the wire. The learned counsel for the appellant writes in his points that, although it might be argued that the verdict was against the weight of evidence, 'this point will not be pressed for the
reason that the erroneous doctrine of the charge goes to the very core of the case and requires a reversal.' I think that a verdict that rests upon the conclusion that the defendant did not put up the wire was not against the weight of evidence. The question, then, of the correctness of the instruction must be determined in view of the facts that the place of the accident was not upon the premises of the defendant and that the cause of the accident did not exist from any affirmative act of it. The instruction was that 'the sole basis of your [the plaintiff's] claim rests upon establishing the fact that the railroad company put that wire up.' The learned and able counsel argues against the correctness of it at great length and with the citation of many cases. He states that the 'fundamental question involved here' is, 'Would the railroad company be excused if the wire had been placed on the sidewalk by some third person not connected with the company? The answer of the authorities is emphatically in the negative.' I proceed, then, to consideration of the cases cited by him.
In Cotant v. Boone Suburban Railway Company (125 Iowa, 46) the end of the defendant's railway ran parallel to the right of way of a steam railway, and the two rights of way were separated by a wire fence. S., the owner of land south of the steam railway right of way, which land he used as a pleasure ground, built a stile over the fence. The plaintiff took one of the defendant's trains, rode to the western terminal, alighted from the car, saw this stile near where the train had stopped and attempted to pass over it, but caught his foot in consequence of the defective condition and was injured. The defendant urged that as it did not erect the stile, had not assumed control thereof and had no right to enter upon the land of the steam railroad company for inspection or repair, it could not be charged with negligence in either construction or maintenance. The accident occurred on that part of the stile which was over and upon the right of way of the steam railroad company. The court said that ordinarily the proposition of the defendant was true, but that it must be remembered that this contrivance was a single complete device which formed a continuous passageway, and if defendant invited its passengers to use it, either expressly or by implication, it was bound to at
least ordinary care to see that it was fit for the purpose; that the fact that the defendant could not go upon the grounds of the other railroad company was not controlling; that the defendant had the right to arrange for the construction of the stile and for permission for its passengers to cross its right of way, and having invited the traveling public to use the device, it will not be permitted to say that it had not erected that part over the grounds of the steam railroad company. 'This contrivance,' say the court, 'was used by defendant's passengers alone. * * * The use made of the stile was for the joint benefit of the defendant company and the owner of the pleasure grounds.' And it was said that the jury was justified in finding, on account of its position and the manner in which the defendant stopped its trains and operated its road, that there was an implied invitation to its passengers to use the device.
In Skottowe v. Oregon Short Line, etc., Ry. Co. (22 Oreg. 430) the defendant's landing place was reached by a long elevated incline and a narrow roadway which rested upon timbers. This way was originally built by the defendant's predecessor in interest and was then used as access to the landing place. At different times the defendant had rebuilt and repaired it, varied and changed it, and 'exercised various acts of control over it.' Part of the way was bridged and the land under it a public street but only so far as it had been plotted out as such. The plaintiff fell from the bridge. It was said that the defendant was bound not only to keep its platforms and landing places safe and convenient, but that it was bound to make the approaches over its own premises or premises in its possession and used in connection therewith safe and convenient, and that the liability is for a defect or obstruction in a way or passage over which he had been induced to pass for a lawful purpose by an invitation express or implied. And it was further ...