Viemeister
v.
Brooklyn Heights R.R. Co.

Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of the State of New YorkJun 16, 1905
182 N.Y. 307 (N.Y. 1905)
182 N.Y. 30774 N.E. 831

Argued May 2, 1905

Decided June 16, 1905

I.R. Oeland and George D. Yeomans for appellant.

Robert Stewart for respondent.



WERNER, J.

The foregoing statement of facts makes it plain that the theory upon which this action was brought and tried was, that the plaintiff had received his injuries through the negligence of the defendant in forcing an increased crowd of passengers upon a car already crowded, as a result of which the plaintiff, then a passenger and standing in the car, was pressed against a seat; and while thus situated, starting the car with such a sudden jerk as to bring the plaintiff into violent contact with the seat, and cause the injury complained of. The charge of the learned trial court was mainly consistent with this theory and correct in its application of proper legal principles. It contained a statement to the effect that if the jury should find that the plaintiff received his injuries as the result of a rush of people "who wanted to get on board at the same time on this crowded car, without the intervention or assistance of the guard," the defendant could not be held responsible "because that is another risk that a man takes in a crowded city in trying to get home the same time as everybody else wants to get home." To this part of the charge plaintiff's counsel excepted, saying, "I take an exception to that portion of your Honor's charge that states that if he was forced on by the other passengers in the desire to get to his home the company will not be liable," and then continuing with a request to charge as follows: "And I ask you to charge, that if though forced by other passengers on the car, if he boarded the car in safety, and thereafter the guard pushed other people in and caused the accident the company is liable." To this request the court responded: "Certainly I charge that."

For the purposes of this discussion we may assume that the relation of passenger and carrier existed between the plaintiff and the defendant quite as fully while the former stood upon the platform as after he had boarded the car. It was an elevated structure, access to which was wholly within the control of the defendant. That assumption is purely academic, however, for the platform is not the place where the plaintiff received his injury. The allegations and proofs of the plaintiff fix the interior of the car as the place of the accident, and assign as its cause the excessive crowding of the car by the guard and the starting of the train with a sudden jerk. That is a theory of the case which the jury could not have misunderstood, because it was the only one supported by evidence and argument. But the court did charge that if the accident was caused by a voluntary rush of other persons who wanted to get on board the car, the defendant could not be held liable, and plaintiff's counsel, instead of contenting himself with an exception to that part of the charge, emphasized his adherence to the theory of the action set forth in the complaint by requesting the court to charge that, even though plaintiff was forced upon the car by other persons, yet, if he boarded it in safety, and the accident was caused by the guard's subsequent forced augmentation of the crowd, the defendant was liable. This request was granted. This was, in substance, a modification of the preceding portion of the charge. Counsel's acquiescence therein has made the charge as delivered the law of the case and he is bound by it. The charge as a whole was fairly responsive to the theory made and supported by plaintiff's counsel, and we should not be hypercritical in construing it simply because a jury has unexpectedly rendered a verdict in favor of a railroad corporation.

The order of the Appellate Division should be reversed and the judgment upon the verdict affirmed, with costs.


The record discloses an exception to the charge which justified the learned Appellate Division in reversing the judgment of the Trial Term in favor of the defendant.

In the main charge the trial judge instructed the jury as follows: "* * *; or if you should find that he was injured by a rush of people who wanted to get on board at the same time on this crowded car without the intervention or assistance of the guard, why the railroad company could not be held responsible, because that is another risk a man takes in a crowded city in trying to get home the same time as everybody else wants to get home."

At the close of the charge the plaintiff's counsel submitted his exception to the charge in a separate sentence, as follows: "I take an exception to that portion of your Honor's charge that states if he was forced on by other passengers in the desire to get to his home, the company will not be liable."

This exception to the charge was followed in a separate sentence by a request to charge as follows: "And I ask you to charge in view of that portion of the charge, that if though forced by other passengers on the car, if he boarded the car in safety and thereafter the guard pushed other people in and caused this accident, the company is liable." To this the trial judge replied: "Certainly I charge that."

I insist that the exception to the main charge was perfectly clear and raised the question whether or not it was legal error for the trial judge to instruct the jury that the railroad company could not be held responsible if the plaintiff was injured by a rush of people who wanted to get on board the train at the same time plaintiff did without the intervention or urging of the guard. In my opinion the railroad company was liable even if there had been no action of the guard, for the reason that it had allowed the station platform to become unduly crowded, which brought about the unfortunate situation resulting in plaintiff's serious injury. The jury should have been instructed that whether the accident to the plaintiff was caused by the crowd from behind forcing people into the car, or by the guard accomplishing the same result, in either event the company was liable.

Mr. Justice HIRSCHBERG, writing for the Appellate Division and referring to the manner in which the trial judge had charged the jury, said: "The remarks of the learned trial judge may perhaps be conceded to be sound when applied to a road which is operated upon the surface of a public highway, but have no application to a road built upon private property to which the company controls access and where a crowd cannot congregate in dangerous numbers unless the individuals composing it pay fares to the company in advance. As was said by Mr. Justice BARTLETT in the case of Dawson v. New York Brooklyn Bridge ( 31 App. Div. 537, at page 539), `The defendants in the case at bar exercised complete control over the avenues of access to the train upon which the plaintiff took passage,' and it was accordingly held that it being within their power to limit the number of passengers who should be permitted to go upon the station platform and into the cars, it was their duty to exercise that power in obedience to the obligation imposed by law upon common carriers so to regulate the movements and disposition of those whom they undertake to transport as to preserve the safety of all."

The fact that the defendant company had absolute control over the access to the train was ignored by the trial judge, but proved a potent factor in leading the Appellate Division to reverse the judgment for the defendant.

I vote for affirmance.

CULLEN, Ch. J., GRAY, O'BRIEN, HAIGHT and VANN, JJ., concur with WERNER, J.; BARTLETT, J., reads dissenting opinion.

Order reversed, etc.