
    Phillips v. Northern Railroad of New Jersey.
    
      (Supreme Court, General Term, Second Department.
    
    December 24, 1891.)
    1. Carriers—Injuries to Passengers—Contributory Negligence.
    Plaintiff, having taken an express train on defendant’s railway which did not stop at the station to which her ticket entitled her to travel, on arriving at a station beyond it, left the train, and, for the purpose of returning to her destination, attempted to board a local train, which had made its regular stop, and passed onto a side track to await the passage of the express. While getting on the rear platform of the réar car of that train, no conductor or brakeman being in sight, she was thrown therefrom by the starting of the train, and injured. Held, that there was no neglect or violation of duty on the part of defendant which would render it liable for plaintiff’s injuries.
    2. Railroad Companies—Negligence—Lessor and Lessee.
    An action for injuries alleged to have been caused by negligence in operating a railway train cannot be maintained against the company owning the railway, where it is operated and controlled by another company under a contract of lease, authorized by statute, by which the lessee is to be exclusively liable for the negligence of employes operating the trains.
    Appeal from circuit court, Kings county.
    Action by Ida L. Phillips against the Northern Railroad of New Jersey for personal injuries received by being thrown from the platform of defendant’s railroad car by the starting of the train while plaintiff was boarding it. Defendant’s line was leased and operated by the Erie Railway Company. Judgment for defendant. Plaintiff appeals.
    Affirmed.
    Argued before Dykhan and Pratt, JJ.
    
      W. Tazewell Fox, for appellant. William C. Dewitt, for respondent.
   Pratt, J.

Assuming that the ticket purchased by the plaintiff was issued in the name of the Northern Railroad of New Jersey,—a fact not as well proven as might be expected,—it was an excursion ticket providing for a ride only from Norwood to Jersey City and back. It gave no right to go elsewhere or further. In traveling beyond Norwood on her return from the city, and especially in attempting to get upon the east-bound local train at Sparkill, a point beyond the limitations of her ticket, the plaintiff enjoyed no contractual relations with the defendant whatever. Her case arises ex delicto, and can only stand upon some duty towards her on the part of the persons controlling and operating the train, from the neglect or violation of which she received her injuries. It is difficult to see that the managers of the train owed her any undischarged duty, under the circumstances of the case. The train had made its regular stop at the station, had received its passengers, and passed onto a side track, where it was awaiting the passage of the western express to clear its way on the main track. The plaintiff was a passenger on that western express, and when it had gone by the train in question was due to proceed on its way. Under these circumstances, the plaintiff alighted from the express when it stopped at the station, hurried backward to the side track where the east-bound train was standing, and undertook to get upon the rear platform of the rear chr just as the train was about to move. No conductor or brakeman was in sight. It was her own act, and at her own risk and peril. An effort is made to overcome this fatal defect imthe plaintiff’s case by showing a custom, on the part of persons going westward by the express, of taking the eastward local train at this point, so as to charge the railroad company with a duty of care in that particular. The evidence, however, is insufficient for the purpose. A custom is not shown to exist in respect to passengers like the plaintiff, nor does it appear that the change of cars took place under any custom in any other than the regular way at the station. We think that when a party undertakes, without a ticket, to get hastily on a train at a place other than the station, with no conductor or brakeman in view, and at a moment when the train is liable to start, if such a party is injured by the inadvertent starting of the train, a recovery cannot be had against the railway company. But the ground upon which the learned trial judge bases his judgment is not answered by the appellant. As already stated, the plaintiff’s cause of action rests solely, if it exists at all, upon some negligence on the part of those who were controlling and operating the train from which she received .her injuries; and the train was being operated and was in its movements under the control of the Erie Bailway Company alone. The lease or contract put in evidence by the defendant, in substance, transfers the control, management, and operation of the trains from the defendant to the Erie Bail way Company at a compensation of 65 per cent of the gross receipts, plus 5-48 of the -remainder. As the contracting parties were not to share in profit and loss, but were to receive simply a fixed share of the gross earnings, the agreement would scarcely constitute a partnership, even at common law. Story, Partn. § 34; Heinstreet v. Howland, 5 Denio, 68; Merrick v. Gordon, 20 N. Y. 93. Here, however, was an express statute authorizing such an agreement, and it would seem that the provisions of the contract rendering the Erie Bail way exclusively responsible for the negligence of the conductors or other servants in the operation of the train had the support of legislative authority. Whatever may be the force of those provisions of the contract which reserve to the defendant a certain supervision over the receipts or the right to sell tickets at specified points, or the power of approval of the employment of conductors, etc., it is still indisputable that the contract took from the defendant the management, operation, and control of the trains, and placed that service and duty, with all its liabilities and consequences, absolutely up'on the Erie Company; and this indisputable provision, which is all of the contract applicable to the case at bar, has plain validity, founded upon the statute. If, then, the plaintiff were in truth injured through any negligence of the conductor or brakeman of the train in question, she could not, under any head of the doctrine of respondeat superior, hold the defendant liable. The Erie Bail way Company was the only principal responsible in such a case. See Norton v. Wiswall, 26 Barb. 618, at 621-623; Blake v. Ferris, 5 N. Y. at 53-57, 61; Ditchett v. Railroad Co., 67 N. Y. 425; Fisher v. Railroad Co., 34 Hun, 433; Abbott v. Railroad Co., 80 N. Y. 27. The difficulty with the appellant’s authorities is that they arise in cases where the transfer of the operation of the road had been without statutory authority, or ultra vires, or where the plaintiff had, by the purchase of a ticket, enjoyed contractual relations with the defendant. A contract would make a party liable irrespective of its relations to the inculpated agent. But here there was no ticket or contract, and the agents inculpated were in fact and law the agents of the Erie Company alone, in the service under consideration. Eor these reasons the judgment of the trial court must be affirmed, with costs.  