
    William Blaisdell, Respondent, v. The Long Island Railroad Company, Appellant.
    Second Department,
    July 25, 1912.
    Railroad — assault by servant — liability of railroad—burden of proof — evidence — care required for protection of invitee.
    In an action by a person, who entered the defendant’s station to await . the arrival of a train, to recover for personal injuries sustained by an unprovoked assault by a laborer sometimes employed and permitted to remain in the station of the defendant, it was alleged that the defendant was negligent in that the laborer was a dangerous and reckless person and a lunatic, and was known to the defendant and its agents and servants to be such.-
    
      Held, that it was incumbent upon -the plaintiff to prove that the laborer was of known vicious habits; that the defendant with such knowledge, actual or constructive, had employed him or permitted him to remain at the station, and that such acts were the proximate cause, of plaintiff’s injury;
    That it was error to permit one of- plaintiff’s witnesses to testify as to a conversation prior to the assault with an employee of the defendant to the effect that the laborer was a lunatic and would kill' somebody some day;
    That such conversation did not constitute notice to the defendant;
    That the plaintiff failed to sustain ■ the burden of proof and to establish that the defendant did not use reasonable care for his protection. Although a railroad company is obliged to use a high degree of care for the protection of a passenger, it is only bound to exercise reasonable care toward a person who enters the station upon its implied invitation.
    . Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 26th day of August, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying the - defendant’s motion for a new trial made upon the minutes. - '
    
      Henry A. Uterhart [ John J. Graham and Joseph F. Keaiiy with him on the brief ], for the appellant.
    
      Charles Blandy [Frederick A. Card with him on the brief], for the respondent.
   Carr, J.:

. About eleven o’clock at night, on April 13, 1909, the plaintiff, who was a resident of the village of Port Washington, L. I., went to the railroad station of the defendant at that place to await the arrival of his wife on the train from. Hew.York city. He entered the station and found the person in charge making ready for closing. The expected train was to be the last one to arrive at that station that night. After it discharged its passengers it was to start back to the city, leaving the station closed for business. When the plaintiff arrived one Huppe, an employee of the defendant, who was in charge of the station, was fixing the fire in the station stove for the night. The plaintiff took a seat inside the station and turned up his coat collar and began to doze slightly. In a few moments a person named Michael Fallon suddenly entered the station from the door Which led to the platform near the tracks. He came in without any noise and walked over directly to where Huppe was bending over the stove with a poker in his hand. Fallon immediately demanded from Huppe whether the latter had said concerning him, that, in a fight which had taken place between Huppe and Fallon about a week previously, Fallon had bitten him, Huppe; the latter made answer that he had so stated, and thereupon Fallon discharged a revolver either at or over the head of Huppe. The latter fell to the floor, and the plaintiff, who was frightened by the occurrence, started to run out of the station to the platform near the tracks. Fallon followed him out and struck him in the mouth with the butt end of the revolver, causing him to fall to the ground. While he was lying down he was kicked by Fallon. This occurrence, which took place in a few moments, resulted in a serious injury to one of the plaintiff’s knees, whereby his power to bend it was impaired practically to the extent of three-quarters of the usual flexion. His business was that of an actor in vaudeville and other kinds of performances, in which his function was to give fancy dances. The injuries to his knee are permanent, and his earning power seriously decreased. For this occurrence he brought this action against the defendant to recover damages for his injuries on the ground that they were caused by the negligence of the defendant. From a judgment in his favor, entered upon the verdict of a jury for the sum of $8,000 damages, the defendant now appeals.

The charge of negligence, as set forth in the complaint, was that Fallon “was a dangerous and reckless person and a lunatic, and was known to the defendant and its agents and servants to be a dangerous and reckless person and a lunatic,” and that the defendant, its servants and agents, employed Fallon in and about the station, and permitted him to remain in the station when not so employed, and further permitted him “to handle and use in and near the said station a loaded revolver obtained by said Fallon from the defendant and its agents and servants with their consent.” At the trial it appeared that the plaintiff and Fallon had no previous acquaintance, and that the assault on the plaintiff was wholly unprovoked.

The plaintiff called a large number of witnesses, including various employees of the defendant, which itself produced no witnesses, but moved unsuccessfully to dismiss the complaint at the close of the plaintiff’s case. There was some conflicting testimony in the plaintiff’s case, and the learned trial court submitted the issue of the defendant’s negligence to the jury, which found a verdict, as before stated, for the plaintiff. The case is somewhat exceptional in its facts. No relation of passenger and carrier existed between the plaintiff and the defendant. The plaintiff was at the station lawfully on an implied invitation of the defendant. Had the plaintiff been there as an intending passenger, having bought a ticket, and awaiting the arrival of a train, the defendant should have been obliged to use a “high degree of care” for his protection. (Exton v. Central R. R. Co., 62 N. J. L. 7; 63 id. 356.)

’ The measure of the defendant’s duty to one. who had come to its station not as a passenger but on an implied invitation, was not so strict. “The general rule applicable to persons occupying real property for business purposes is that they must use reasonable prudence and care to keep their property in such a condition that those who go there shall not be unreasonably and unnecessarily exposed to danger. The measure of their duty is reasonable prudence and care.” (Flynn v. Central R. R. Co., 142 N. Y. 439, and cases cited.)

This duty extends not only to the keeping of the physical structure reasonably safe, but requires the exercise of reasonable care to prevent danger from vicious practices of third parties, of which there was knowledge in the defendant or a reasonable opportunity for knowledge had reasonable care been taken. (Swinarton v. Le Boutillier, 1 Misc. Rep. 639; 148 N. Y. 752.) In the case last cited, a person who had entered a department store was severely injured in one of her eyes by the act of a “ cash boy ” who had been “snapping pins” in the air, either at the visitor or some other object. It was shown that the practice of snapping pins on the part of the “ cash boys ” had existed for several months previously and that the defendant was chargeable with notice thereof, and had taken no steps to prevent its continuance. He was held liable accordingly for a failure to exercise reasonable care. In Dean v. St. Paul Union Depot Co. (41 Minn. 360) the defendant was held liable for an unprovoked assault made upon one who was lawfully in the depot as a passenger, by an employee of a tenant of the defendant, who was in charge of a parcel room. It was shown that the employee was of a vicious temperament and had frequently made unprovoked assaults, during a period of six years, on persons lawfully in the depot. The ground of liability was stated by the court as follows: “Whatever obligation otherwise, by virtue of its contract with the carrier, rested upon the defendant as to the plaintiff, it is manifest that it was bound to use ordinary care and diligence to keep its premises in a safe condition for those who legitimately came there. It had no more right, therefore, to knowingly and advisedly employ or allow to be employed, in its depot building, a dangerous and vicious man, than it would have to keep and harbor a dangerous and savage dog or other animal, or to permit a pitfall or trap into which a passenger might step as he was passing to or from his train.”

In Carpenter v. Boston & Albany R. R. Co. (97 N. Y. 494) it was held that where a railroad company, with knowledge of the practice, had failed to prevent a practice of throwing mail bags from mail cars from its passing trains to its platform, by reason of which a person lawfully upon its platform was injured, it had failed to exercise “reasonable care,” notwithstanding that the persons who threw the mail bags were not in its employment. ■

Applying this rule, in the light of the examples cited, it was incumbent upon the plaintiff to prove that Fallon was of known vicious habits and that the defendant with such knowledge, actual'or constructive, had employed him at the station, or had harbored him there, or had permitted him to coiné there without any lawful business there to be done by him, and that such acts were the proximate cause of the plaintiff’s injury. To sustain this burden of proof the plaintiff gave evidence that, early in the evening of the day. in; question, Fallon was seen by third parties in an apparently drunken condition, uttering loud threats; that about eight p. M. of said evening he had entered the station while Huppe was present, and went behind the wire door of the ticket office and took from a cupboard a revolver owned by one of the station employees. While Huppe testified that he did not see Fallon take the revolver and that he did not know that there was a revolver there, he admits that he saw him open the door of the ticket office partly, without making any attempt to prevent him. The door of the ticket office was unlocked at the time and could be opened by simple pushing. Huppe was busy at the ticket case at the time.

During the evening in question Fallon had drunk considerable “hard cider,” and he was unquestionably drunk' at the time of the assault upon the plaintiff. Evidence was given that Fallon had been twice committed to a State hospital for mental diseases, once in 1901 and once previously in 1899, but that in each instance he had been discharged by the authorities of the hospital after short intervals; and that the defendant’s station agent, G-orman, had known that Fallon had been an inmate of the hospital; that nevertheless Fallon had been employed in 1907 by the same station agent as a helper on an express wagon of the defendant for upwards of a month or more; that he was seen asleep on the benches of the station at' an early hour in the morning and while the station was open for business; and that he was employed to deliver, from time to time, telegrams or telephone messages received in the' station; that he was known generally in the village as Crazy Mike,” and that his reputation for peacefulness and sobriety was bad.

A week before the assault in question he had come to the station and there had a verbal dispute with Huppe, who ordered him to leave the station. He refused, and Huppe then ejected him violently after a scuffle, and forbade him to return. Yet, on the evening of the assault, Huppe saw him go into the ticket office, open the wire door and go to a cupboard, without any attempt to prevent him. The gist of the plaintiff’s proofs was that'Fallon was known to be a dangerous character and that the defendant’s agents practically gave him a free run of the station and thus encouraged him to frequent it at his pleasure. It was not shown, however, that Fallon, except as to the former quarrel with Huppe in the previous week, had ever assaulted any person at the station, or that he had ever, as an aggressor, committed any assaults elsewhere in the village. His general reputation for verbal quarrelsomeness and sobriety was said not to be good by some of the plaintiff’s witnesses, though others had testified that they had never seen him drunk or quarrelsome. The plaintiff produced Fallon as a witness, and from his testimony it appeared that he took from the station the revolver in question for reasons which appear to be rather hazy; that he had drunk considerable hard cider bn the night in question; that his mind had been inflamed by stories which he had heard as to what Huppe had said about the quarrel of the previous week; that he had come to the station so late at night to return the revolver, and that when he saw Huppe he demanded from him whether he had made the statements referred to, and that he then discharged the revolver over Huppe’s head simply to frighten him, and he thereafter struck the plaintiff because he thought the latter, as an ally of Huppe, was about to attack him. He denied that he was ever forbidden to frequent the station, and he testified that he was frequently engaged to deliver telegrams, and likewise fre- • quently swept out the station, from time to time, up to the day of the assault in question.

That he ever swept out the station after he left the employment of the defendant in 1907 was denied by the defendant’s station employees. The delivery of telegrams was explained by the station employees as due to a practice on the part of the defendant to intrust such work to any person who happened to be at the station at the time and who was willing to undertake the matter and to receive his compensation from the person to whom the message was addressed. This is a. common enough practice at country railroad stations at small places on Long ■ Island. There was evidence also that the station agent, Gorman, sometimes permitted Fallon to drive the mail wagon. After Fallon left the defendant’s regular employment in 1901, he spent some time in the city, and after his return to Port Washington he was in various employments in the neighborhood. For some time preceding, and up to the occurrence of April thirteenth, he was employed as a driver for a small tradesman in the village, and had occasion to call at the station frequently for freight on the business of his employer. If the acts of the defendant at the precise time of this assault be scanned, it is apparent that it is not chargeable with any lack of reasonable care at that moment. ■ Fallon came into the station suddenly and quietly, at a very late hour of the night. His misbehavior at that time was so instantaneous that there was no opportunity to eject him before the mischief was done. Nor do we think that the defendant was bound to anticipate that he would come to the station so late at night, and take means accordingly to prevent him from entering. If the defendant was guilty of negligence which was the proximate cause of the plaintiff’s injuries, it must be found earlier than the time of the assault. There was no satisfactory proof to show-that any of the defendant’s employees employed about the station knew that Fallon was drunk at the time, or had possessed himself of a revolver. Fallon’s coming there was among the possibilities, hut was it so probable that one in the exercise of reasonable care should have been bound to anticipate it and to have taken steps to prevent it ? We think not. Nor do we think that there was shown anything in the prior happenings that called upon the defendant to exclude Fallon from its station unless his then present conduct justified it. In any event, the question of the defendant’s liability was far from plain, and, with this consideration, we think also that reversible error was committed in receiving certain evidence of the plaintiff’s witness Kliesrath. He had testiffed that on “ the night before the shooting ” he was in a tavern about 150 feet away from the station with one Elmer Brown, who, he said, was an employee of the defendant; that he saw Fallon in the station cursing loudly and threatening to kill somebody, but he did not see any of the station agents present. He was asked by the plaintiff’s counsel what he then said to Brown. This was objected to and admitted over an exception. He answered as follows: I says that crazy fool will kill somebody some day, and they can’t do nothing to him with the exception of putting him in a lunatic asylum. That is all they can do.” Not content with this, plaintiff’s counsel again asked the witness what Brown answered. Over objection and exception the witness was allowed to answer, and he said: Well, he said he was of the same opinion I was.” It does not appear from any testimony in the record who Brown was or what was his connection with the defendant, other than the general statement of the witness that he was an employee of the defendant. It is argued by the respondent that this evidence was admissible to prove notice to the defendant through Brown. But the opinion of Kliesrath as to Fallon’s future conduct was no part of such notice, nor had Brown any power to bind the defendant by any expression of agreement in the opinion of Kliesrath as a part of a conversation in an adjoining tavern. We think this evidence was highly prejudicial to the defendant and that it was error to receive it.

The judgment and order should be reversed and a new trial granted, costs to abide the event..

Burr, Thomas, Woodward and Rich, JJ., concurred.

Judgment and. order reversed and new trial granted, costs to abide the event.  