
    FLEMING v. BROOKLYN CITY R. R. CO.
    
      City Court of Brooklyn; General Term,
    
      May, 1876.
    Negligence.—Pleading.
    A railroad company are not liable for damages sustained by a newsboy who is allowed free access to their cars, merely because the injury might have been prevented by the attention of their servants.
    Appeal from a judgment of nonsuit, and from an order denying a motion for a new trial.
    The action was brought by Catharine Fleming, as administratrix of Thomas Fleming, to recover $5000 damages from the defendant, for negligently causing-his death.
    The complaint alleged: “That on the 16th day of" April, 1874, at, &c., while one of defendant’s cars was being driven rapidly along said street, one Thomas. Fleming, an infant of the tender age of eight years, was standing- on the sidewalk of said street, offering; newspapers for sale, when, at' the desire or suggestion-, of some passenger upon said car, who wished to purchase a newspaper from said Thomas Fleming, as; plaintiff is informed and verily believes, the person then driving defendant’s said car, and being employed by defendants to drive the same, did, negligently, and with gross and culpable disregard of the said Thomas. Fleming’s tender years and feeble strength, invite, in-dace, persuade or permit said Thomas to approach, ascend and jump on the front platform of said car, and without stopping or slackening the speed of the same, and there permitted said infant for a short period to remain, and pass into and about said car, and then to pass out and off the same by way of the front platform as aforesaid, without stopping or slackening the speed of said car, and without .directing him to pass-out by way of the rear platform, as was his duty to do; but so negligently, carelessly, and heedlessly did the defendants, by and through this person, their driver, conduct and manage their business in and about said car, that the said .Thomas Fleming was thrown or slipped from said platform, and fell under the wheels of said car, whereby he was run over and killed.”
    The answer was a general denial.
    , The cause came on for trial before Judge McCtte and a jury, on November 11, 1875. After plaintiff’s opening, but before any evidence had been taken, defendant moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    Plaintiff then offered to prove an additional fact not stated in the complaint, viz., to show a license of the railroad company to sell papers on the cars; but his offer was overruled, and the motion to dismiss granted. The plaintiff excepted to each ruling, and moved for a new trial on the exceptions. This was denied, and plaintiff excepted and appealed to the general term.
    
      E. P. Wilder, for appellant.
    I. Upon an appeal, where a complaint has been dismissed without taking evidence, every intendment will be taken most strongly ¡to sustain the pleading (Simmons v. Eldridge, 19 Abb. Pr. 296).
    II. As to the indicia by which a passenger for hire is to be distinguished from a free passenger, or a trespasser, see the following cases: Shearm. & Redf. on Neg. §262; Gordon v. Grand St. & Newtown R. R. Co., 40 Barb. 546 ; Edgerton v. New York & H. R. R. Co., 39 N. Y. 227. The question is exclusively for the jury (Meyer v. Second Ave. R. R. Co., 8 Bosw. 305; Wharton on Neg. § 354).
    III. The deceased was lawfully on defendant’s cars," (Carroll v. N. Y. & N. H. R. R. Co., 1 Duer, 571; see also 34 N. Y. 670 ; Wilton v. Middlesex R. R., 107 Mass. 108).
    IY. Although deceased was not a passenger for hire, the defendant would still be liable (Nolton v. Western R. R. Co., 15 N. Y. 444; Gould v. Hill, 2 Mill, 623; Cole v. Goodwin, 19 Wend. 251; Perkins v. N. Y. C. R. R. Co., 24 N. Y. 200 ; Phila., &c. R. R. Co. v. Derby, 14 Mow. [U. S.] 468 ; 6 Id. 382; Doran v. E. R. F. Co., 3 Bans. 105).
    Y. Even if a trespasser, defendant owed him the duty of careful treatment, and careful regard for his life and limb (Shearm. & Redf. on Neg. § 264; Robertson v. Erie R. R. Co., 22 Barb. 91; Robinson v. Cone, 22 Verm. 213; Birge v. Gardiner, 19 Conn. 507 ; R. R. Co. v. Stout, 17 Wall. 657; Corwin v. N. Y. & E. R. R., 13 N. Y. 42; Whart. on Neg. §§ 346, 354; Lynch v. Nurdin, 1 Ad. & E. [N. S.] 29, and 1 Q. B. 36).
    YI. The chief ground of defendant’s liability, consists in the extreme infancy of deceased, and this is a question for the jury (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310; Downs v. N. Y. C. R. R. Co., 47 Id. 83; Drew v. Sixth Ave. R. R. Co., 26 Id. 49 ; Hil v. Forty-second St., &c. R. R. Co., 47 Id. 317; Sheridan t>. Brooklyn City, &c. R. R. Co., 36 Id. 39; O’Mara n. H. R. R. Co., 38 Id. 445; Mangam n. Brooklyn City R. R. Co., 38 Id. 455; Nichols v. Sixth Ave. R. R. Co., 38 Id. 131).
    YII. As to negligence of company, and its duty as common carrier to so young a child, see Spooner v. 
      Brooklyn City R. R., 36 Barb. 317; Mulhado v. Brooklyn City R. R., 30 N. Y. 370 ; Ernst v. Hudson R. R. R., 35 Id. 9 ; Smith v. N. Y. & H. R. R. Co., 19 Id. 137; Nolton v. Western R. R. Co., 15 Id. 444; Stinson v. N. Y. C. R. R. Co., 33 Id. 333; Coughtry v. Globe, &c. Co., 56 Id. 134; Eckert v. L. I. R. R. Co., 43 Id. 505.
    VIII. Absence of contributory negligence need not be alleged in the complaint (Johnson v. H. R. R. Co., 5 Duer, 31; 3 N. Y. 65 ; Wolfe v. Supervisors of Richmond, 11 Abb. Pr. 370).
    
      Henry C. Murphy, for respondent.
    I. There should be an allegation in the complaint that deceased was, free from contributory negligence, which must be alleged and proved to constitute a cause of action (Button v. H. R. R. Co., 18 N. Y. 348 ; McLain v. Van Zandt, 39 Super. Ct. [ J. & S.] 347; Warner v. N. Y. C. R. R. Co., 44 N. Y. 465; 1 Abbott’s Forms, No. 194, 196, 2nd ed. p. 453; Spencer v. Utica & S. R. R. Co., 5 Barb. 337.
    II. Driver a special agent for particular purpose, which purpose does not embrace authority to admit or exclude passengers, and cannot increase his powers by his own act (Marvin v. Wilber, 53 N. Y. 370; Eaton v. Del., &c. R. R. Co., 57 Id. 390).
    TIT. The driver, in inviting boy on to thé car, was not acting in the scope of his agency, and his act was not defendant’s (Isaacs v. Third Ave. R. R. Co., 47 N. Y. 135 ; Eaton v. Del., &c. R. R. Co., 57 Id. 383, 389 ; Mechanics’ B’k v. N. Y. & N. H. R. R. Co., 13 Id. 634 ; Sleath v. Wilson, 9 Car. & P. 607 ; McKenzie v. McLeod, 10 Bing. 385 ; Shearm. & Redf. on Neg. § 63).
    IV. Deceased being on car as trespasser, defendant owed him no legal duty on which negligence can be based (Eaton v. Delaware, &c. R. R. Co., supra; Nicholson v. Erie R. R. Co., 41 H. T. 530 ; Terry v. N. Y. C. R. R. Co., 22 Barb. 586; Bolch v. Smith, 7 Hurls. & N. 736 ; Grillis v. Penn. R. R. Co., 59 Penn. 129 ; cited in 16 Am. R. 619).
   Reynolds, J.

The plaintiff’s intestate was not a passenger on the defendant’s car. He was not expected to pay fare, neither did he go on board for the purpose of being transported from one place to another. He simply had a license to pass on and off the car, for the purpose of selling papers to the passengers. It appears from the complaint, that he passed into the car safely; the charge is, that the driver permitted him to pass out and off, by way of the front platform, without stopping, or slackening the speed of the car, and without directing him to pass out by way of the rear platform.

The complaint proceeds upon the theory, that by permitting newsboys to traffic with the passengers on the cars, the defendant becomes charged with the duty of looking after their safety, of seeing that they do not run into danger, and of stopping or slackening the speed of the car for them to leave, whether requested to do so or not.

I do not think the railroad company can fairly be said to have assumed any such obligation. Of course the driver had no right to do any thing which would recklessly, or needlessly expose this boy to danger; but I do not understand that the company is in any sense the guardian for the time being, even of children of tender years, who are permitted by their parents or guardians to go upon the cars for the purpose of selling papers, nor that it is bound to restrain them from exposing themselves to danger. It employs agents for the purpose of carefully and properly conducting the business of carrying passengers, but such business, it seems to me, does not embrace within its scope the obligations sought to be charged upon it by the complaint in this action.

I think the complaint was properly dismissed, and that the judgment should be affirmed.

Neilson, Ch. J., concurred.  