
    Stodder v. New York, L. E. & W. R. Co.
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    1. Railroad Companies—Lease op Road—Defective Switch—Liability of Lessor.
    A railroad company is directly liable to one who is injured, while riding on the train of another company operating oyer deféndant’s road, by reason of a defective or mismanaged switch maintained by defendant, towards the maintenance of which the carrier company paid defendant a certain sum monthly.
    
    2. Same—Evidence—Prior Negligence—Harmless Error.
    In an action against a, railroad for injuries caused by a defective or mismanaged. switch, it was harmless error to ask defendant’s switchman if he recollected a prior act of negligence on his part, where it appears that the question was asked more to test his recollection than with any other view, and nothing more was asked in re gord to it.
    3. Same—Repair of Track. . •
    Evidence was admissible of the defective condition of the track some time after the accident, though a new switch-stand had been put in, and several other parts replaced, there being evidence that these changes did not affect the particular defect supposed to have caused the accident.
    Appeal from circuit court, Hew York county.
    Action by Rosa S. Stodder against the Hew York, Lake Erie & Western Railroad Company for damages for personal injuries. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    
      Argued before Van Brunt, P. J., and Macomber and Bartlett, JJ.
    
      Charles Steele, for appellant. Charles W. Gould, for respondent.
    
      
       See note at end of case.
    
   Bartlett, J.

The accident which gave rise to this action .occurred to a train belonging to the New Jersey & New York Railroad Company, while running over a railroad track, near Nanuet Junction, in Rockland county, in this state, belonging to the New York, Lake Brie & Western Railroad. The latter corporation allowed the New Jersey & New York Railroad Company to run its trains over the Erie track at this place. There was a switch at this point, the defective condition of which, or the mismanagement of which, is alleged to have caused the accident. This switch was maintained by the defendant corporation, which employed the persons who looked after it. The-New York & New Jersey Railroad Company paid the defendant corporation $18 a month, towards the cost of maintaining the switch. This appears to have been the only compensation received by the Erie Company for the use of its track, or the maintenance of the. switch. The plaintiff was a passenger on a train coming from Spring Valley to Jersey City. As this train approached the switch which has been mentioned, at Nanuet Junction, it should have left the Erie track, and, turning to the right, have run southward, onto the New Jersey & New York line. The switch was apparently set so as to take it in this direction. The engine and tender, and the forward truck of' the passenger car in which the plaintiff was riding, passed the switch properly, and took the right track; but the rear truck of the passenger car, instead of leaving the Erie line at the switch, as it should have done, continued to-run along upon the Erie track. As the Erie track and the New Jersey & New York tracks diverge abruptly from each other at this point, the result was that the passenger car broke loose from the rest of the train, and was thrown over an embankment some 15 feet in height.

We have carefully examined the evidence, and think the proof sufficed to-warrant the jury in finding that the accident was due, either to the defective condition of the switch, or to the negligence in its management. In either event, however, the defendant denies that it is liable to the plaintiff, inasmuch as she was not a passenger on the defendant’s road, but was present thereon as a mere licensee, and not in pursuance of any contract. So far as-this point is concerned, the case appears to be indistinguishable from Smith v. Railroad Co., 19 N. Y. 127, 129. In that case, the plaintiff’s husband, an engineer employed by the New York & New Haven Railroad Company, was killed by an accident to his train while running over the tracks of the New York & Harlem Railroad, in consequence of the misplacement of a switch upon the latter road, through the negligence of a switch-tender employed by the Harlem Company. There was an arrangement between the two companies whereby, for a certain compensation, the New York & Harlem Railroad Company gave the New York & New Haven Railroad Company the right to run trains over its track, and provided switchmen and flag-men along that portion of the line. The question arose whether, under these circumstances, the New York & Harlem Railroad Company was liable to any one except the New York & New Haven Railroad Company, with which its contract was made. The court of appeals held that, inasmuch as death or great bodily harm was a natural consequence of negligence in the management of a railway, the defendant was liable to any one lawfully traveling over its road. This decision was based upon the leading case of Thomas v. Winchester, 6 N. Y. 397, where it was held that a dealer in drugs, who sold poison, labeled as a harmless medicine, was liable to a person who, in turn, bought it from an innocent buyer, for an injury arising from its use. It is argued that the doctrine of Thomas v. Winchester has no application here, because it does not appear that the appliance which caused the accident at Nanuet Junction was intrinsically dangerous to human life, as the bottle of poison was. It is insisted that the principle laid down in that case cannot be invoked, where the .claim is simply that the machine is out of repair, or is defectively constructed. That this view is incorrect is made manifest by the statement of the case in Smith v. Railroad Co., supra, where it appears that the jury, in answer to a specific question, found that the death of the plaintiff’s intestate was caused by the negligence of the defendant’s switch-tender. This shows that the accident which was the subject of that litigation was due, not solely to a defect in the mechanical appliances of the line, but to the negligence of one of ■the railway servants as well. Furthermore, we are of opinion that a railway switch, which is either defective in construction or out of repair, is intrin■sically dangerous to the lives of passengers transported over that portion of ■the track upon which the switch is situated, and where it must be used in order to regulate the movement of passenger trains. It is also sought to distinguish the present ease from Smith v. Railroad Co., on the ground that the .defendant did not receive any compensation from the Hew Jersey Railroad .Company for the use of its tracks, and was not bound to keep its tracks in repair, or to operate the switch for the trains of that company. As to compensation, the proof shows that the defendant made a charge of $18 a month against the Hew Jersey & Hew York Railroad Company, for the cost of maintaining the switch, and that this amount was paid. The defendant selected and hired the switchman, and he acted under its orders. There can be no .doubt, upon the evidence, that the defendant did undertake to keep the track and switch at Hanuet Junction in safe and proper order, and did maintain and control the switch there; and, in the absence of any proof to the con-trary, it will be presumed that the consideration for so doing was this payment of $18 a month by the Hew Jersey & Hew York Railroad Company. It was not error, therefore, for the court to charge the jury that the defendant .owed the plaintiff the duty of keeping its switch in a safe condition; nor was -it error to charge that if the negligence of the switchman caused the accident -the defendant was liable. As already pointed out, one of the grounds of liability in the Smith Case was the negligence of a switchman.

Some exceptions to the admission of certain testimony, under objection, remain to be noticed. When the defendant’s switchman was under cross-examination, he was asked whether he. recollected an occasion, previous to the .accident in which the plaintiff was injured, when he left the Hew York & Hew Jersey train down- the Piermont branch. This question was. objected to -as immaterial; the objection was overruled, and an exception was taken. The witness answered that he did remember it, but he was not questioned further-on the subject. This ruling is assigned as error, on the ground that evidence .of other acts of negligence is not admissible to prove negligence on a particular occasion. Up to this point of his examination the witness had mani-fested a poor memory as to many important points upon which he was interrogated; and it is apparent that this question was put rather for the purpose of testing his recollection than with any other view. As soon as he answered that he remembered the incident; he was asked nothing more in regard to it, and it is plain that this single question and the response thereto could not have harmed the defendant.

A good deal of testimony was introduced by the plaintiff, under objection and exception by the defendant, as to the condition of the switch some time after the accident, when a new switch-stand had been put in, and several other parts had been replaced. This evidence was not admissible, without proof that, in spite of the substitution of the new portions, the condition of -the switch remained practically the same as it was when the accident happened,—so far, at least, as related to the particular defect which was supposed 'to have caused the disaster. This was looseness in the fitting together of the various parts of the switch, and in its adjustment to the tracks, which produced what is known as “lost motion,” and prevented the switch from doing its work completely, so that, when operated, it did not bring the ends of the rrails exactly opposite one another, but produced what railroad men call a “‘¡lip” at the point of meeting. The road-master of the New Jersey & New York Railroad Company examined the switch a few hours after the accident. 'The changes which have been mentioned had already been made. He found three-quarters of an inch of lost motion. His testimony, however, tended •strongly to show that the new standard at this time was in the same position .as the old one, and that none of the changes had altered the lost motion, which remained just the same as he had noticed it before the accident. “ This switch,” he said, “was in the condition that I have testified to,—with a lost motion; six years this lost motion has been there.” The evidence of the "track-foreman of the defendant, by whom the new standard and rail were put in, also indicates that nothing was done which would affect the lost motion •of the switch. This proof as to the similarity of the reconstructed switch to that which was there when the ear was thrown off the track, made it proper to receive evidence as to the defective condition of the switch as it existed -after the accident. The judgment and order should be affirmed, with costs.

Van Brunt, P. J., and Macjomber, J., concur.

NOTE.

(Railroad Companies—Lease—Liability of Lessor. Corporations organized for ■public purposes cannot, by contract of sale, lease, or otherwise, render themselves incapable of performing their duties to the public, or in anyway absolve themselves from the obligation which forms the main consideration for giving them a corporate existence, unless this be done by consent of the state, given through the charter, or in some other manner. Railway Co. v. Morris, (Tex.) 4 S. W. Rep. 156. A railroad company cannot escape the performance of any duty or obligation imposed by its charter, or the general laws of the state, by a voluntary surrender of its road into the hands of the lessees, in the absence of statutory authority. Breslin v. Railroad Co., (Mass.) 13 N. E. Rep. 65; Naglee v. Railway Co., (Va ) 3 S. E. Rep. 369; Freeman v. Railway Co., (Minn.) 10 N. W. Rep. 594; Lakin v. Railroad Co., (Or.) 11 Pac. Rep. 68; Harmon v. Railroad Co., (S. C.) 5 S. E. Rep. 835; Palmer v. Railway Co., (Idaho,) 16 Pac. Rep. 553; Acker v. Railway Co., (Va.) 5 S. E. Rep. 688; Railroad Co. v. Eckford, (Tex.) 8 S. W. Rep. 679, .and cases cited in note. See, also, Railroad Co. v. Lee, (Tex.) 9 S. W. Rep. 604. And where, without such authority, it leases its road to another railroad corporation, which enters upon, controls, and manages the road, the former corporation is liable for injuries to persons caused by negligent defects in its track at a highway crossing. Freeman v. Railway Co., supra. The ground of the liability of a railway company, which has leased its line to another company, for the act of the lessee, is not merely that the lessee is the agent of the lessor, but that the lessor, in consideration of the grant of its charter, undertook the performance of duties and obligations towards the public, and public policy requires that it should not be released therefrom without the consent of the legislature. In order to relieve the lessor from such liability, a legislative exemption is necessary. A mere consent to lease is not such an exemption. Balsley v. Railroad Co., (Ill.) 8 N. E. Rep. 859. A railroad corporation, over a section of whose track another company, by virtue of a contract, runs its trains, is liable m tort to the latter’s •brakeman, who, while in the due performance of his duty on his employer’s train, receives a personal injury solely by reason of the negligent construction of the farmer’s station-house. Nugent v. Railroad Corp., (Me.) 12 Atl. Rep. 797. A lessor railway company is liable for the damages and statutory penalty for a fire caused by a lessee company along the track or right of way. Balsley v. Railroad Co., supra. Where the railroad on which stock was killed was owned by one company, and leased to another, without special authority from the state, both companies are liable to the owner of the stock,—the one. because of its actual operation of the road; and the other, because it could not, without permission of the legislature, transfer its franchise even.temporarily so as to release itself from liability for the acts and defaults of its lessee. Railway Co. v. Dunham, (Tex.) 4 S. W. Rep. 472.  