
    NEIL HARDEN v. THE NEW YORK CENTRAL & HUDSON R. R. R. Co.
    
      Negligence.—Duty to public of railroad company occupying pier with derated platform for cars, etc., without guards or lights. —Sespectire liabilities of railroad company and consignee, using pier for unloading cargo, for injuries to employee of consignee falling from such platform.—Contributory negligence of such employee.
    
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    
      Decided June 2, 1883.
    Motion by defendants for a new trial upon exceptions ordered to be heard in the first instance at general term ; verdict directed for plaintiff.
    The action was for damages, from injury to plaintiff alleged to have been caused by defendant’s negligence.
    The defendants were the occupants of a pier. They had placed their tracks upon it; on either side of the tracks was a platform about three and one half feet high. The whole was used for the loading of freight upon defendants’ cars. The plaintiff had been working at the river end of the pier. After dark he finished his work and proceeded on his way out upon one of the platforms. It was dark, and meeting a pile of iron, he turned toward the edge of the platform, thinking he would find it, by touching cars that he supposed to be there. There were no cars, and he walked off the platform, and was injured by falling to the ground.
    The court at General Term, said: “It seems clear that there was no proof of negligence on the part of the •defendants in the way they constructed or maintained the platform. If the defendants had the legal right, as it is assumed they had, to use the dock as a place where their ■cars might be unloaded and loaded, it is to be said that there was no proof that the platform, as it was, was not a .necessary means of doing their business. So far as the ¡^exigencies of the business may be looked at, on this point, j
    
      the inference from them would be, that the platform, without'a fence running along its edge, was a fit and required, structure. The only other negligence that the facts would,, in any contingency, countenance, would be that the defendants had not furnished light sufficient to enable a person to see where the edge of the platform was. Evidently, it would be too great an exaction to require that after dark, when the general use of the platform had ceased for the day, the whole length of the platform for two hundred feet should be lighted. It would be more just to require that, assuming the plaintiff: was upon the dock by the implied invitation of defendants, they should make light sufficient to show the edge of the platform at such points as would be near the road, that the plaintiff might be justified in taking after ending his work. It may be assumed that the defendant was bound to furnish to the plaintiff a way by which to leave the dock, either by pointing out the way specifically or by circumstances that might indicate it. There was no evidence at all, that the plaintiff was justified in thinking that the way he took was one intended for egress, or appeared to be the only way out, or the safer of two, if there were more than one. He had, in the course of the day, perceived that the platform was incumbered -with iron. Soon after he started from his work, he perceived that before him it was so dark that there were apparently no indications of there being a way out. In connection with this, there was no proof that there was not another apparent way out. There was no proof that he was. obliged to take the way he did. I therefore, am of opinion i that there was no proof that the defendants were negligent in not furnishing light at the point where the plaintiff fell.
    “ I think further, that the special circumstance of this particular event, show that no negligence was proved. The plaintiff did not proceed, as if he were ignorant of the danger from the unguarded edge of the platform. He knew it and guarded against it, but insufficiently. If he had not' ;relied on there being cars along the platform, the absence: :«of light would not have caused his falling from the platform. As a fact, the accident was caused by there being no cars-there. The question is, was there negligence as to what did cause the accident, and not as to what might have caused it if the circumstances had been different. I cannot'think of any reason for holding that the defendants were bound to have the cars standing there.
    “ On the other hand the proof was that the plaintiff was negligent. He gave no proof of facts that justified him in supposing or believing that there would be cars along the line of the platform. He gave no evidence that he had seen them, in the course of the day, at this point or its neighborhood. Others may have seen them, but he did not act upon information from them. There was no proof that any one had seen cars in' the neighborhood of the point in question shortly before, the plaintiff left work. If they were there in an earlier part of the day, there was no reason to suppose that they would remain there. Cars are meant to move and not to stand indefinitely. It was, therefore, negligence for the plaintiff, to go into danger, relying for protection from it on the supposition of there being a guard, when he had no reason to suppose that one would be there. It is to be observed further, that if cars had been there, there is no reason to think that his hand or foot would touch a car, rather than go into the space between two cars.
    “ The plaintiff was one of a gang of men, hired by the consignee of hides, that arrived in a steamer. The hides had been unloaded from the steamer at the dock and delivered to the consignee, but had not been removed by him. He hired the gang to assort the hides as to quality and to fold them. It did not appear conclusively in the evidence that this was a usual thing to do in the proceeding by a consignee to remove hides. If this had appeared, the defendants would have been held to the duty they owe to one coming upon their pier by their invitation or implied request. Such also would have been their duty, if it were proven that the consignee were allowed to assort their hides, as a convenience to them granted by the defendants, on account of its practical connection with the steamer using ' the dock, in a way that was a benefit to the defendants. On the other hand, if the sorting of the hides . were gratuitously permitted to the consignee, for the benefit solely of the consignee, then, in my opinion, the obligation to furnish a safe exit was due to the plaintiff from the consignee, but not from the defendants. In weighing the evidence on these points, the fact of the hides being assorted in part after the working day was over, should be considered. The direction of the judge to the jury on this point was correct. The jury was to find, on the facts, whether what the consignee and the plaintiff under him were doing, 'was not incident to the business of taking away the hides.
    ‘ ‘ For the reasons that have been given, my judgment is that there should be a new trial with costs to defendants to abide the event, the present verdict to be set aside, defendant’s exceptions being sustained.”
    
      Charles W. Brooke, for plaintiff.
    
      Frank Loomis, for respondent.
   Opinion by Sedgwick, Ch. J.; Truax and Ingraham, JJ., concurred.

Verdict set aside and new trial ordered, with costs to defendants to abide the event.  