
    Ida E. Phillips, App’lt, v. The Northern Railroad of New Jersey, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Negligence—Boarding moving train.
    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, a recovery cannot be had against the railroad company for injuries sustained by the inadvertent starting of the train.
    2. Bailroad—Not liable for wrongful acts of lessee.
    Defendant’s railroad was leased to the Brie Bailway Co., in pursuance of chapter 218, Laws 1839, by which lease the latter company was to have exclusive charge of the road and pay defendant a fixed share of the gross. earnings. Held, that defendant could not he held liable for injuries sustained through the negligence of the Erie’s servents or agents bygone who attempted to board a train without a ticket.
    (Babnabd, P. J., dissents.)
    Appeal from an order made at the circuit by the Hon. Justice Willard Bartlett, denying a motion for a new trial upon the minutes, and directing the exceptions to be heard in the first instance at general term.
    The action was brought for injuries caused by the alleged negligence of defendant.
    The facts were as follows: The plaintiff purchased at Norwood,, in New Jersey, an excursion ticket from Norwood to Jersey City and return. She spent the day in New York, and upon going over to Jersey City to take the train back to Norwood, she found she had just missed the train which stopped there. An express train was about to start which stopped at Closter, the first station this side of Norwood, and she decided to take it. and get off at Closter and wait there for the local train, instead of at Jersey City, where it was very cold on account of the depot being unfinished. After getting upon the train she met friends, and she then concluded to go to Sparkhill, the first station beyond Norwood, and come back to Norwood by the local train, which met and passed the express at Sparkhill. In this way she would save half an hour. Upon arriving at Spark-hill she left the express and proceeded immediately to get upon the local train, which was waiting a few feet past the station for , passengers arriving by the express. While she was in the act of getting upon the local train it started, and she was dragged some sixty feet and injured. The ticket which she bought at Norwood was issued to her in the name of the Northern Eailroad of New Jersey. There is no other railroad at that point. The cars bore the name of that road, and the time tables posted in the stations along the road also had the name, The Northern Eailroad of New Jersey, upon them.
    The defense is" that the defendant had, in 1868, executed a contract, by which it had transferred to the Erie Eailway Company the entire management of its road and trains, and that on the day of the accident the defendant had nothing whatever to do with the train which caused it.
    
      W. Tazewell Fox, for app’lt; Wm. C. De Wilt, for resp’t.
   Pratt, J.

Assuming that the ticket purchased by the plaintiff was issued in the name of the Northern Eailroad 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 farther. In travel-ling beyond Norwood on her return from the city, and especially in attempting to get upon the east bound local train at Sparkhill, 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 toward 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 on to 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 car 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 in the 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 purposa 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 Brie Railway Company alone. The lease or contract put in evidence by the defendant, m substance, transfers the control, management and operation of the trains from the defendant to the Brie Railway Company at a compensation of sixty-five per cent, of the gross receipts plus five forty-eighths 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 on Partnership, § 34; Heimstreet 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 Brie Railway 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., 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 upon 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 bralceman of the train in question, she could not, under any head of the doctrine of respondeat superior, hold the defendant liable. The Erie Railway Company was the only principal responsible in such a case. See Norton v. Wiswall, 26 Barb., 618, at 621, 622 and 623 ; Blake v. Ferris, 5 N. Y., at 53 to 57—61; Ditchett v. R. R. Co., 67 N. Y., 425; Fisher v. Metropolitan R. R. Co., 34 Hun, 433; Abbott v. Johnstown R. R. 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.

For these reasons the judgment of the trial court must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., dissents.  