
    Charles H. Webster, Resp’t, v. The Rome, Watertown and Ogdensburg Railroad Company, Appl’t.
    
    
      (Court of Appeals,
    
    
      Filed June 4, 1889.)
    
    1. Negligence—Railroads—What constitutes gross negligence.
    In an action to recover damages for injuries suffered by the plaintiff, through the alleged negligence of defendant, and while riding on defendant’s railroad, Held, that the unexplained presence of a freight car in the night time in the way of an approaching train, would be evidence of very gross negligence.
    
      2. Same—Precautions to avoid.
    The defendant conceded that the car was moved from a side track upon the main track by the force Of the wind. Held, that it was the duty of the defendant to so secure the freight car upon the side track, that no wind which might be reasonably anticipated could move it upon the main track.
    8. Same—Contributory negligence—When not.
    It was claimed, upon the part of defendant, that plaintiff was guilty of such negligence, in going into the baggage car. as to bar his recovery for the injury he there received. Held, that if plaintiff’s presence in the bag ■ gage car did not have any relation to the injury, it furnishes no defense to the defendant.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment entered upon a verdict rendered at the Monroe circuit.
    
      D. H. Chamberlain, for app’lt; Theodore Bacon, for resp’t. '
    
      
       Affirming 40 Hun. 164
    
   Earl, J.

The train upon which the plaintiff was a passenger came in collision with a box freight car, which stood upon the railroad track, and in consequence thereof he was injured.

We think there was some evidence legitimately tending to establish the defendant’s negligence. There was the presence of the freight car in the night time in the way of the approaching train, and that, unexplained, would be evidence of very gross negligence. The explanation of the defendant is that the car was moved from a side track upon the main track by the force of the wind; and so, undoubtedly it was. But this explanation alone is not sufficient to shield the defendant from responsibility. It is well known that the wind may move cars, and may move them from a side track upon the main track, and thus cause damage to trains there. Such danger is recognized in one of the rules of the defendant, which requires the station agent before leaving his station at night, to see “that all standing cars are out of the way and secured against the possibility of their being moved out of the side track.” It was the duty of the defendant to so secure the freight car upon the side track that no wind which might be reasonably anticipated would move it upon the main track. Did. it discharge that duty? That was the question for the jury. It gave evidence showing that when the freight car was placed upon the side track, the brakes thereon were set, and that thus it was secured. The plaintiff gave evidence tending to show that if the brakes upon the car had been properly and thoroughly set, and the car thus properly secured, such a wind as there was prior to the collision could not have moved the car. The wind did not blow down buildings or trees or fences, or standing crops, and whether its force was great enough to move a car weighing about 20,000 pounds, if the car was properly secured, was a fair question for the jury, who, in its solution, could bring to bear upon it their own experience and observation.

It is quite true that the burden was upon the plaintiff to establish the defendant’s negligence. But this burden was well borne by him when he proved the presence of this car belonging to it upon the track in the way of its passenger trains. The case thus made by the plaintiff could be met by the defendant by evidence tending to show that the car came upon the main track without its fault, and then, upon all the evidence, it was incumbent upon the plaintiff to satisfy the jury that there was negligence fairly attributable to the defendant. If the brakes were inadequate to secure such a car so that any wind which might be reasonably expected could not move it, then the jury might find that a car left standing for nearly two days ought, in the exercise of that high degree of care, incumbent upon a railroad company for the protection of its passengers to have been blocked or otherwise secured.

The plaintiff, on the night of the collision, had taken his seat in a passenger coach where there was plenty of room for him; he left his seat gnd went forward into the baggage car to .smoke, and there he was at the time of the collision. The claim of the defendant is that he was guilty of such negligence in going into the baggage car as to bar his recovery for the injury he there received. There would be some basis for this claim if his injury could be traced to his presence in that car. But if his presence there did not have any relation to the injury, then it furnishes no defense to the defendant. It does not appear ‘that the baggage car was on the occasion of the collision any more dangerous than the passenger coach. On the contrary, the evidence tends to show that it was a safer place, and that his escape from sudden death was due to his presence there, and the trial judge submitted the case to the jury upon this theory. He charged: “As far as the plaintiff is concerned, the collision would have occurred no matter where he was upon the train; but the claim of the defendant is not that the plaintiff being in the baggage car contributed to the collision, and it is not necessary for that to be established. But the claim of the defendant is that the plaintiff being in the baggage car contributed to the injury.

That is the question for you to decide upon that branch of the cause. Whether the plaintiff being where he had no business to be, contributed to the injury which he received.”

Again: “ The question is simply whether his being in the baggage-car at that time, and under the circumstances in which he was, contributed to his receiving the injury which he did receive; if it did contribute to that injury then he fails to make out his case in that particular, and the defendant is entitled to your verdict; if it did not contribute to the injury he has established the case on that point.” This charge was as favorable to the defendant as it could ask.

We are, therefore, of opinion that the'judgment should be affirmed, with costs.

All concur except Ruger, Ch. J., absent.  