Wells v. New York Cent. & H. R. Railroad

This action was begun March 5, 1897, to recover damages for the death of the plaintiff’s intestate, her husband, caused, it is alleged, by the negligence of the defendant. It was brought to trial November 10, 1897, at a trial term of this court, which dismissed the complaint on the plaintiff’s opening, with costs. The-plaintiff excepted to the decision, and her exception was ordered to-be heard by this court in the first instance. The following facts were stated by the plaintiff’s counsel in his opening, and many of them are alleged in the complaint. George H. Wells, the intestate, resided-at Le Boy, N. Y., and on the 4th of January, 1897, purchased a ticket of the defendant entitling him to a passage on its trains from Le Boy to Rochester, N. Y., and return. He reached Rochester at about 2 o’clock in the afternoon of the day mentioned, and, after transacting some business in the city, returned to defendant’s passenger station at Bochester at about 4 o’clock in the afternoon, for the purpose of" taking a train to Le Roy, which left the Rochester station at 5 o’clock and 20 minutes in the afternoon. He took a seat in the waiting room for passengers, having his ticket entitling him to ride from Rochester to Le Roy in his possession. Beforé the 5:20 p. m. train-came the intestate showed the gateman his ticket, and stated where he wished to go, and the gateman told him to sit down, and when his train arrived he would notify him. While sitting in the waiting room it was seen by the persons in charge of the station, and by two of his friends, that he was so ill that he did not recognize his acquaintances, and it was apparent that he was not in his right mind. It was said on the argument that he was occasionally subject to fits of epilepsy, and was afflicted with one at that time. Passengers at this station are admitted to the train shed through a gate in charge of ’ a gateman, who was informed who the intestate was, where he lived, and the train he desired to go out upon, and also that he was not in a condition to care for himself, and the gateman was asked to see that he was put upon .the proper train. The train came and departed, but Mr. Wells was not notified by the gateman of its arrival, and when the gateman saw that he was left he told a policeman who was at the station “that he had forgotten about Mr. Wells, and that evidently he was not in a condition of mind to go on any train; and fold him [the policeman] to put him out of the depot, and the policeman took Mr. Wells, and led him to the door at the western entrance.” After Mr. Wells was taken from the station by the policeman he wandered around, and afterwards was seen on the tracks of the defendant’s road near the train shed, and about 6 o’clock in the afternoon he was run over and killed by defendant’s east-bound passenger train.

If the foregoing facts, which were stated in the opening, are established on the trial, and in no wise explained, they are sufficient to constitute a cause of action. The relation of carrier and passenger existed between Mr. Wells and the defendant. Gordon v. Railroad Co., 40 Barb. 546 ; Weston v. Railroad Co., 42 N. Y. Super. Ct. 156 , affirmed 73 N. Y. 595 ; Grimes v. Pennsylvania Co., 36 Fed. 72 ; Warren v. Railroad Co., 8 Allen, 227 ; Wood, Ry. Law, § 298; 3 Elliott,. R. R. p. 2460; 5 Am. & Eng. Enc. Law (2d Ed.) 488 et seq.

The plaintiff’s exception should be sustained, and a new trial .granted, with costs to abide the event. All concur.