
    Kate Pendergast, as Administratrix, etc., of Thomas Pendergast, Deceased, Respondent, v. The Union Railway Company of New York City, Appellant.
    
      Negligence—defective gate to a platform of a street ca/r — right of a workman riding upon a pass to recover for injury—effect of his having leen advised on other occasions that he could not — when the conductor is not a fellow-servant, but represents the master.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the plaintiff’s intestate was a laborer in the defendant’s employment, and that after having finished his work, he, with several of his fellow-workmen, got upon a car of the defendant in order to go home. The foreman of the men made out a pass (under which it was claimed that, in case of injury, the person riding upon such pass waived all right- of action against the defendant) for eight men and gave it to the conductor. There was no evidence that the plaintiff’s intestate knew that a pass having that effect had been presented to the conductor; or that he was in any manner a party to that transaction, but the foreman testified that on prior occasions he had, when he had given the plaintiff’s intestate a pass, informed him that he had to ride at his own risk.
    There was no proof that the foreman had told the plaintiff’s intestate anything as to the effect of riding upon such a pass as the foreman gave to the conductor at the time in question.
    
      The plaintiff’s intestate came to his death because a gate upon the back iilatform of the car where he was standing, all the seats in the car being filled, was not properly fastened and gave way, when the plaintiff was either thrown or shoved against it. The conductor, whose duty it was, by a rule of the company, to see that the gate was securely fastened before the car started upon the trip, knew that the gate could not be fastened.
    The jury rendered a verdict in favor of the plaintiff, and upon appeal from a judgment entered thereon it was
    Held, that contracts, by which common carriers sought to exempt themselves from liability for the result of negligence upon the part of their agents, should be enforced only where there was proof that such a contract was made for a good consideration, and that whatever might be the effect of the statements made by the foreman to the plaintiff’s intestate on occasions prior to the accident (relative to riding upon a pass), upon the defendant’s liability for an injury to the deceased, resulting while he was riding on the passes given him on such occasions, it could not he said that their effect was to relieve the defendant fromliability for all subsequent acts of negligence in relation to the deceased; That the contention that the accident was the result of the negligence of a fellow-servant was untenable;
    That even assuming that, notwithstanding the fact that the deceased had finished his day’s work and was on his way home, he was still in the employment of the defendant, it was the duty of the defendant not only to furnish him with a safe and proper place in which to work, but also one in which to ride to and from his work, if it undertook to convey him;
    That the defendant, by its rule making it the duty of the conductor to see that each gate was securely fastened before the car started upon its trip, had delegated this duty to the conductor, and that his neglect to obey the rule was the negligence of the defendant and not that of a fellow-workman engaged with the deceased in the performance of a common work;
    That the deceased was not guilty of contributory negligence merely because he stood upon the back platform of a street car, especially when all the seats were filled, and where it did not conclusively appear that he was at any time leaning upon the gate.
    ■ Appeal by the defendant, The Union Railway Company of New York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of March, 1896, upon the verdict of a jury rendered after a trial at the Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 17th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      William N. Cohen and Edgar M. Johnson, for the appellant.
    
      G. Washbourne Smith, for the respondent.
   Ingraham, J.:

The plaintiff’s intestate was in the employ of the defendant as a laborer on its railroad on the 13th of January, 1894. When his work for the day was finished he got on one of the defendant’s cars with several of his fellow-workmen to be transported home. The foreman of the men made out a pass for eight men and gave it to the conductor. There is no evidence that plaintiff’s intestate knew that such a pass had been presented to the conductor by Hogan (the foreman), or that he (the intestate) was at all a party to the transaction. It may, however, be assumed that plaintiff’s intestate understood that the railroad would carry him from his place of work to his residence, but that is the extent to which we are justified in assuming that plaintiff’s intestate had any knowledge of the pass in question. Shortly after the car started the plaintiff’s intestate was thrown off, the evidence being that a gate near which plaintiff’s intestate was standing was out of order; so bent that it was impossible to securely fasten it in place, and that it was in consequence of this insecurely fastened gate giving way that plaintiff’s intestate fell. He received in juries which resulted in his death, and this action is brought to recover the damages sustained by his next of kin in consequence thereof.

Several defenses were interposed by the defendant. The first one that requires notice is that the plaintiff’s intestate was riding upon a free pass under a special contract between himself and the railroad company, or its agents; that while riding upon such pass he waived all right of action against the railroad company in case of injury. We think, however, that the evidence was insufficient to establish that any such contract or understanding between the railroad company and the plaintiff’s intestate existed. The proof of such a contract depends solely upon the testimony of Hogan (the foreman), who swears that at former times, when he had given a pass to plaintiff’s intestate, he had informed him that he had to ride at his own risk; that the company was entirely blameless.” Hogan expressly testified that he did not give a pass to the plaintiff’s intestate on the day in question, and that no statement was then made to the plaintiff’s intestate as to what effect riding upon such a pass as he gave the conductor would have. He only testifies that on prior occasions when he gave to him (plaintiff’s intestate) a pass he made this statement. Whatever effect this would have upon the liability of the defendant for any injury that resulted, or which was occasioned to the recipient of the pass upon the ride on which the pass was used, certainly it could not be held to extend to all subsequent'occasions upon which plaintiff’s intestate used the road. Contracts by which common carriers seek to exempt themselves from liability for the result of negligence on the part of their agents have been enforced only in case of proof that the contract by which it was intended that the carrier should escape the result of its negligence was made for a good consideration between the carrier and the passenger. And it would be going far beyond the principles established in any reported case to which our attention has been called, or with which we are familiar, to hold that a conversation relating to the giving of a prior pass upon a road would relieve a carrier from all future acts of negligence in relation to the same passenger.

As we think that there was no evidence here that would justify a finding of the jury that such a contract between the plaintiff’s intestate and the defendant, as to the effect of his riding upon a pass on the night in question, was made, it is not necessary to examine the objections taken by the defendant to the admission of evidence as to the pass in question, or as to the terms and condition upon which other passes had been issued by the railroad company.

The defendant also claims that the negligence of the defendant in regard to the proper fastening of this gate was the negligence of the conductor; that the plaintiff’s intestate being in the employ of the railroad company, the conductor was a fellow-servant, and that the negligence was, therefore, that of a fellow-servant with the person injured, and for that the defendant is not liable. It appears, however, from the testimony of Hogan, that at the time that Pendergast got upon this car to go home he had finished his day’s work; that at the time he was on his way home from work. Assuming, without deciding, that plaintiff’s intestate was, notwithstanding that he had finished his day’s work, still in the employ of the defendant, and that he was a fellow-workman with the conductor, it was clearly the duty of the railroad company to furnish him with a safe and proper place to do his work, or to ride to and from his work if they assumed so to convey him. That was clearly a duty that the railroad owed to plaintiff’s intestate, and for a neglect properly to perform that duty.the defendant would be liable. By its rules it has expressly made it the duty of the conductors of its cars to see to it that each gate is securely fastened before starting the cars. It thus created these conductors its agents in performing this duty that it owed to its passengers, as well to those in its employ as to those who were not, to provide a suitable and safe car in which to carry them to their destination. A neglect by its conductor to perform that duty would clearly not be the neglect of a fellow-workman with the plaintiff’s intestate, as the conductor was acting as the agent or representative of the corporation to perform the express duty which it owed to plaintiff’s intestate. His neglect to perform such duty was the neglect of the company to perform the duty which it owed to the plaintiff’s intestate, and not an act of negligence on the part of the conductor in the performance of the work of the corporation in which plaintiff’s intestate was engaged, as the plaintiff’s intestate and the conductor were not fello.w-worlcmen in doing this particular work or performing this particular duty, the neglectful performance of which occasioned the injury. This principle is too well settled to require the citation of authority, and it seems to us clear that in no sense could the neglect of this conductor to comply with the rules of the company, throwing upon him the duty of seeing that each gate was securely fastened before starting the cars, be considered the neglect of a fellow-workman with plaintiff’s intestate.

"Where two persons are engaged in the performance of a common work for a master, and one of them is negligent in the performance of that work, and thus occasions injury to another workman engaged in the performance of the same work, the master is not liable ; but where the duty is upon the master to furnish a proper and safe place for an employee to worlc_ and to furnish the employee with proper tools to do the work required by the master, and he delegates that duty to another, it is entirely clear that such other, in the performance of the delegated duty, is not a fellow-workman with one who is injured because of the failure of the master or his delegated agent properly to perform the duty imposed upon him.

The other questions presented by the appellant upon this appeal hardly require extended notice. An examination of the testimony has satisfied us that the verdict of the jury that the defendant was guilty of a neglect of its duty in supplying to plaintiff’s intestate a safe and proper car to carry him to his destination was sustained by the evidence, as was the freedom of plaintiff’s intestate from contributory negligence. The plaintiff’s intestate, standing upon this car, whether touching the gate or not, was entitled to assume that this gate was so fastened, that it was not a trap for an unwary passenger so that, upon the slightest pressure upon it, it would give way and precipitate him into the street. It is said that this gate was placed upon the platform for the purpose of preventing passengers from alighting from the car upon the track of the company used by cars proceeding in an opposite direction ; but, if it was so insecurely fastened that the moment it-was touched it would spring open, it would not be useful for the purpose for which it was placed there. And the evidence of the condition of the gate and the fact that when the plaintiff’s intestate and another man were either thrown or shoved against it, it at once sprung open and threw them on the ground were sufficient to justify the jury in finding that the car was not a safe and proper car to transport the plaintiff’s intestate to his destination. It is also quite clear that the unsafe condition of this car was the result of the conductor’s negligence in refusing to comply with rule 34 of the company and see to it that the gate was securely fastened before starting the car upon the trip. He testified that he saw, before starting the car, that this gate was so bent that it could not be fastened with the bolt employed for that purpose, and that, instead of either straightening the gate so that the bolt could be used, or tying it up with wire or some other substance so that it could not be opened, he simply left it in the insecure condition that it was, subject to be thrown open upon the slightest pressure against it. It is also quite evident that the jury was justified by the evidence in finding that the plaintiff’s intestate was free from contributory negligence. There is nothing to show that he had any knowledge of the - condition of the gate. It is not, as a matter of law, contributory negligence to stand upon the back platform of a street car, especially when all the seats in the car are filled; and it does not conclusively appear that plaintiff’s intestate was at any time leaning upon the gate.

Several exceptions were taken to the admission of evidence and to the charge of the court. None of them, we think, require that we should reverse this judgment, nor do they require special notice. Taking it as a whole, we think the charge of the learned judge was fully as favorable to the defendant as the evidence warranted; that the evidence presented a fair question of fact to the jury which was submitted to them upon a charge very favorable to the defendant, and that their verdict should not be disturbed.

The judgment should, therefore, be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  