
    Rodney C. Webber, App’t, v. The Herkimer and Mohawk St. R. R. Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 17, 1888.)
    
    1. Statute of limitations—Action for personal injury resulting from NEGLIGENCE—CODE ClV. PRO., § 888, SUB. 5.
    Where the source of the personal injury complained of is found to be in the negligence of the defendant, the action must be commenced within three years, or the statutory provision (Oode Civ. Pro., §383, sub. 5) may be pleaded in bar.
    3. Same—Form of action does not affect—Common carrier.
    The form of the action, whether ex contractu or ex delicto does not affect the case, under this statute. The liability of the defendant as a carrier of passengers is referrable to the question of its negligence.
    3. Same—When cause of action complete—When statute begins to RUN.
    While passing along the outside platform of defendant’s street car, on which plaintiff was a passenger, in compliance with a direction given by its conductor, plaintiff was struck by a telegraph pole and injured. The conductor knew of the close proximity of the telegraph pole and neglected to warn plaintiff, Meld, that the cause of action arose and was perfect and complete when the injury occurred to the plaintiff, by reason of the negligence of the defendant in the breach of its legal duty to carry the plaintiff safely ; that the statutory limitation of three years commenced to run at that time.
    4. Common carrier—When liable for injury resulting from negligence.
    If the passenger, through any accident is injured in his person, and his freedom from fault is established, the carrier is liable to him in damages, if the proofs show that the injury occurred through its negligent acts or those of its agents or servants.
    Appeal from.a judgment of the supreme court, general term, fourth department, affirming a judgment in favor of defendant, entered upon an order dismissing the complaint made at the circuit.
    
      A. B. Steele, for app’lt; Samuel Earl, for resp’t.
    
      
       Affirming 35 Hun, 44.
    
   Gray, J.

The plaintiff’s complaint, in substance, alleged the making of an agreement between himself and the defendant, a street railroad company, operating as common carriers of passengers between the villages of Herkimer and Mokawk, in this state, by which on June 23, 18J9, the defendant, having received him into its car, for a certain compensation, then paid by him, undertook and agreed with him to transport him, with care, diligence and safety to his person, from Herkimer to Mohawk, and that its cars, road and appurtenances thereto, were safe, suitable and proper for the accomplishment of that undertaking. It further alleged that the defendant omitted and neglected to perform its said undertaking and violated the same, in the respect that its car was so constructed that while in motion a passenger could not pass from one end to another without stepping outside on a side platform; and that while on his journey and in the night-time, the conductor ordered plaintiff to move from the rear end of the car to the front end. While complying with this direction and in passing along said outside platform, plaintiff was struck by a telegraph pole, crushed against and thrown from the car into a ditch and was greatly injured. It alleged that the defendant’s servants were well aware that at a certain part of the road the telegraph poles were so near to the track, as to make it dangerous for any person to be on the outside platform of the car while passing that point; and that in ordering plaintiff to move, defendant’s servants neglected to warn him of the close proximity of the telegraph poles and that he was injured without fault on his part. The complaint then alleged the nature and extent of his injuries and. the amount of damages sustained.

The answer, among other defenses, set forth that this action was brought to recover damages for a personal injury resulting from negligence, and that the cause of action did not accrue within three years next before the commence- ' ment of the action.

When the case came on for trial it was conceded that the action was commenced on the 6th day of March, 1883, and the court held that the statutory defense, pleaded by the answer, was applicable to the case and ordered a verdict for defendant. The plaintiff excepted to this ruling and order, and also to the refusal of requests to be allowed to go to the jury.

The sole question for dur review is the correctness of the judge’s ruling upon the application of the statute of limitations set up in defendant’s answer as a bar to the action. Plaintiff’s counsel contends that the cause of action arises upon a “contract obligation” of the defendant, and that subdivision 1 of section 383 of the Code of Civil Procedure provides that such an action may be brought within six years. He argues that the gravamen of the action and foundation of the claim are the contract or undertaking of the defendant; and that defendant was under no obligation to him excepting that arising therefrom, and that subdivision 5 of section 383, being intended to apply to cases of liability not resting upon contracts, does not apply.

It is, however, too well settled, to require extended discussion at this day, that common carriers of passengers are not insurers of personal safety, and that for an injury happening to the person of a passenger they are only liable for negligence in failing to use due care, diligence or skill in ana about their undertaking, in order to prevent those injuries which human foresight and care can guard against. If there is any defect in the vehicle by which passengers are carried, and an injury occurs thereby, they are liable, if at all, on the sole ground of negligence.

The form of the action, whether ex contractu, as claimed to be the case here by appellant’s counsel, or ex delicto, does not affect the case under this statute. Carroll v. Staten Island R. R. Co., 58 N. Y., 126, 134. The liability of the defendant, as a carrier of passengers, is referable to the question of its negligence. If the passenger, through any accident, is injured in his person, and his freedom from fault is established, the carrier is liable to him in damages, if the proofs show that the injury occurred through its negligent acts or of those of any of its agents or servants.

Section 382, in the fourth chapter of the Code of Civil Procedure, which contains the statutory provisions for the limitation of the time of enforcing a civil remedy, fixes a period of six years for the bringing of “an action upon a contract obligation or liability, express or implied,” and for . “an action to recover damages for an injury to property or a personal injury; except in cases where a different period is expressly prescribed in this chapter.”

The fifth sub-division of section 383 fixes a period of three years for the bringing of “an action to recover damages for a personal injury resulting from negligence.” This fifth sub-division of section 383, was a new provision, and fur-nishes the exception contemplated in the previous section. It repealed the provision of the former statute, by which a period .of limitation of one year was fixed for the commencement of an action to recover damages for personal injuries. Watson v. Forty-second St. R. R. Co., 93 N. Y., 522.

There should not be the slightest reason for misapprehending the intention of the legislature, or for misapplying the language of the sections. Where the source of the personal injury complained of is found to be in the negligence of the defendant, the action must be commenced within three years, or the statutory provision may be pleaded in bar.

The learned counsel for the appellant says, that if such a construction is given to the fifth sub-division of section 383, it w 11 be difficult to mention a case to recover damages for a personal injury, as provided in sub-division 3 of section 382, not covered by sub-division 1 of section 384, or by subdivision 5 of section 383. But he is quite mistaken. The third sub-division of section 382 applies to all cases where -the personal injury results from, acts other than those constituting negligence in the defendant. Illustrations are not difficult to mention. Such would be a case where an injury occurred to the person of the passenger, because the carrier had failed to transport him, according to its undertaking, to the point of his destination; or where it had failed to furnish suitable or proper accommodations and physical discomforts or sickness resulted; or because of unreasonable delay or detention from which he suffered in any demonstrable way.

Sub-division 9 of section 3343, defines as personal injuries, in addition to those referable to sub-division 1 of section 384, the cases of seduction, malicious prosecution and criminal conversation.

' In the case at bar, the cause of action arose upon the principles of the common law, and was perfect and complete when the injury occurred to the plaintiff by reason of the negligence of the defendant in the breach of its legal duty to carry the plaintiff safely, and the statutory limitation of three years commenced to run at that time, and the action not having been brought until after the expiration of that period, the defense of the statute was perfect.

The judgment appealed from should be affirmed.

All concur, except Earl, J., not sitting, and Daneorth, J., not voting.  