
    Peter Burns, Respondent, v. The Delaware and Hudson Company, Appellant.
    Third Department,
    November 20, 1906.
    ¡Railroad — liability for negligence when train is under control of third person — injury resulting from obstruction of street at railroad station — violation of statute.
    Where a railroad company enters into a contract with a union station company for the use of the facilities of the station, and surrenders the control and placing of its trains and authority to direct its trainmen to the station company, it has a right to assume that the trains will be properly controlled and is not liable for injuries resulting from the manner in which the station company'performs its duties.
    Hence, under such cirdumstances, a recovery against the railroad company for injuries to a pedestrian received from a runaway horse which became frightened at a train which had been placed by the station company so that it extended beyond the station, an'd partially obstructed a, city street, should be reversed. The fact that the train had occupied this position for more than five minutes in violation of statute does not charge the railroad company with negligence.
    Appeal by the defendant, The Delaware and Hudson Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county .of Rensselaer on the 26th day of Hay, 1906, upon the verdict of a jury for $6,500, and ■ ■also from an order bearing date the 25th day of Hay, 1906, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis E. Carr, for the appellant.
    
      George B. Wellington, for the respondent.
   Kellogg, J.:

The material facts are stated in the report of this case on a former . apjieal (110 App. Div. 592). The following additional facts now appear: The accident occurred at four-forty- p. m. The train was . scheduled to leave the station at five p. m. Upon this trial the court substantially charged that" if the engine and train were put and kept in the position in which they were, by the direction and •under the control of the Troy .Union Station Company,, the defendant ' could not be charged with obstructing -the street, even though the ■ engine-extended beyond the line of Fulton street, but submitted to the jury the question whether the engine obstructed the street, whether the obstruction was willful and caused the injury. The charge that the defendant was not responsible for "the location and ' keeping of this engine, over the line of Fulton street, if that act .was caused by the Union Station Company, constituted the correct rule and prevented a recovery. The defendant had no station or tracks between or upon these streets. It had to rent its facilities of the Union Station Company. Several other companies also had like facilities in such station. It is manifest that the defendant, in ' a joint station like this, could not operate its trains in its own manner and subject to its own discretion, but.all of the" companies must operate their trains and place them in the station under the direction and subject to the control of the officers of that company. The life and safety of the traveling public required that there should be but one control of the station, and that each separate company could not have its own way. It * will not do to say that if the defendant entered into a contract which will compel it to commit a nuisance at the command of the Union Station Company it is liable nevertheless. It has not entered into any such contract. It had the "right and it was necessary for it to .enter into a contract that its trains should be controlled by that company-in its station. Defendant had the right to assume that the trains would be controlled according to law and with due respect to the rights of the public. I hire an independent contractor to do a piece of work lawful in itself and which may be done in a lawful manner; he does it in an imperfect and reckless manner and in such a way that some one is injured. Still I am not liable, .because the acts I contracted for were legal, and the only negligence is the negligence of the contractor in doing a proper thing in an improper way. My servan t takes my carriage to cross, the river upon a ferry boat and -pays the ferryman for the service. The ferryman takes charge of the carriage and man according to the rules, of the boat, and by placing them improperly on the boat causes an injury to another. I am not responsible for his carelessness as he was an independent contractor. Here the situation of the. defendant is practically the same. It put its different trains and trainmen in charge of the Union Station Company while in and about that station. The Union Station Company was an independent contractor and responsible for the manner in rvhich it performed its duties. If the engineer upon the train, by direction of the Union Station Company, violated the statute by obstructing the street for more than five minutes, that engineer and the Union Station Company may be guilty of an offense, but such offense would furnish no ground for liability against a defendant who was powerless to remove the train or control its movements. When a train is ordered into this street, the defendant and the engineer have the right to suppose it will not be required to stayfionger than was permissible, and if the Union Station Company caused it .to stay an improper time it is the act and default of that company. It is conceded, of course, that the defendant could not engage the Union Station Company to do an illegal act and shield itself from liability because it was done by its employee and hot by itself. But this train-was upon the Union Station Company track, subject solely to its directions, and, while the defendant’s servants irianned the train, they and defendant were powerless to act.

While the Union Station Company ordered this train into the depot twenty minutes ahead of time for departure, the defendant is not charged with knowledge that this engine was to be placed into or near the street, and when the engine was first directed to go upon the street the officers of the train did not know that they would be compelled to wait there an unreasonable time. It does not appear that they did not have reason to believe the train' would be backed up and off the street. The defendant itself is not, therefore, liable for the criminal act, if it was one, of the trainmen or of the Union Station Company in keeping, this engine ;u-pan the public street beyond the prohibited time, and no negligence cari be assumed against it on account of its train being there. The responsibility under the statute, or on the question of a nuisance, rests upon the Union Station Company, or the.officers of the train itself. - The defendant has violated no duty which it owed to the public or plaintiff, and there is no evidence tending to show that it committed any nuisance or was guilty of any negligent act., ,

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

All concr' red; Parker, P. J., in -result j Smith, . J., in memorandum.

Smith, J.

(concurring) :

• iThis. case has been twice tried. The first trial resulted in a verdiet for the plaintiff of $1,000. ' This judgment was set aside by this, court by reason of an error in the charge of the trial judge. Upon á retrial the jury rendered a verdict for $6,500. From the judgment entered upon this verdict and' from an" order denying defendant’s motion for a new trial this appeal is taken.

Fulton street in the city of Troy runs east and west, and crosses the railroad tracks of the Troy Union railroad at 'grade at-the north end of the Union Station. The station is between Fulton street at the . north and Broadway at the south. The distance between the two streets is four hundred feet. In July, -1901, when, the plaintiff was injured, seven railroad tracks; extended through the station and across Fulton street at the north end thereof. - The width of the crossing on Fulton street, that is, the space occupied by those tracks', was eighty feet. Fulton street is itself sixty feet wide. The entire’, width of the street at this place was planked, and there was nothing to distinguish the sidewalk from the driveway. The railroad tracks belonged to the Troy Union road, which company has sole charge of them and their use. Three railroad companies ran their trains over the Troy Union railroad tracks into and from the Troy-Union. Station. These companies were the Delaware and Hudson Company, the New York Central, and the Boston and Maine. The trains of those companies, when on the Troy Union tracks in and about the station, were under the direction and control of the Troy Union Station Company. Between four and five o’clock in the afternoon of July 12, 1901, the plaintiff, with other employees of the Troy Union Company, was engaged on Fulton street, north of the middle of the street and near the east side of the crossing, relaying the plank on the crossing. On track Ho. 3 was a Delaware and Hudson engine. The engine headed north. The" train to which it was attached was a passenger train, due to leave the station for the north at five o’clock. It consisted of the engine and tender and five cars, four passenger coaches and one baggage car. The train occupied the whole station on track Ho. 3, between Broadway and Fulton streets, and the front end of the engine extended over and upon Fulton street. The accident is claimed to have happened at twenty minutes before five upon that day. Horth of this engine upon Fulton street was a sufficient space to allow a team to pass. While a horse was being driven along Fulton street ahead of this engine it became frightened by reason thereof, and running away struck and injured the plaintiff. For the injury sustained plaintiff has sued the defendant and recovered a judgment.

This case is not in any way affected by section 421 of thé Penal Code. This a criminal statute to be construed favorably to one charged with its violation. In the first place, a partial obstruction only of the highway is not within its terms. Again, a willful obstruction is one caused maliciously, without proper motive. An engineer who purposely obstructed a crossing in the reasonable conduct of his train is guilty of no violation of the statute.

The right of a railroad company to cross a highway carries with it the right to pass over that highway and obstruct the same so far as reasonable necessity requires. While in the exercise of duties called for by the reasonable exigency of its work it is guilty of no wrong and of no negligence by reason of its occupation of the highway. If an engine or car is placed upon a public street and left there when there is no reasonable "necessity therefor, the company is then guilty of creating a nuisance and unlawfully obstructing a public highway.

It is not a matter of public interest how long a train remains at a station, unless by reason of its length it extends upon or across a highway. ■ If an accident is caused by its being upon the highway, the question is then was it there at the time of the accident from a reasonable necessity of the service ? If a, train should pull into- a station and necessarily dccupy an adjoining highway five minutes before it was scheduled to leave it would probably be held as matter of law that it was properly upon the highway. If a train, liowever, pulled into a station and occupied an adjoining highway a longer time before leaving, it might then become a question of fact as to whether it was necessarily upon the highway at the time of the accident. In the case at bar' this train was to leave\ at five o’clock. The accident was at four-forty. The jury should have been allowed to-say whether it was reasonably necessary for this train .to occupy the highway at the time of -the accident. . If not, 'the fact of such occupation was a wrongful act, and if by reason thereof this horse was caused to rtin away,, injuring the plaintiff, defendant is responsible therefor.

This case was submitted to the jury solely upon the question as ,to whether the highway was being willfully obstructed at the' time of the accident, and whether by reason of such willful obstruction this injury was. caused. In view of the conclusions herein expressed,, the judgment must be reversed because based upon an erroneous theory of the law.

I do not agree that defendant-may' shield itself behind the contract with the Troy Union Company which owns the station and tracks upon which its train was standing. While in the station those in-charge of defendant’s trains müst obey the orders of the station master of the Troy Union Company. The contract sworn to, however, does not authorize the Trov .Union Company to require defendant to bring its . train to the station twenty minutes before starting time. Nor is there a word of evidence that the train was brought to the station at that time by order of the Troy Union Company. The control of the train while át the station may be with the 'Union Company, hut not the ti/me of its coming. When the train is so long, however, as to necessarily extend into one street Or the other, the time of its coming is the vital question in determining whether at the time of the accidént it was Unnecessarily upon the highway as a. nuisance. Whatever the terms of the contract, it would, not be construed to require defendant to obey an instruction of the station master to do an act which would amount to a nuis'ance. But howsoever the contract may be construed, a defendant can no more excuse a wrong by alleging that the wrong charged was committed under a contract with another than it could defend a crime by alleging that the crime charged was committed under a contract with another.

I do not mean to indicate that in my judgment the relations between the defendant and the Troy Union Company were wholly immaterial. Where there are several railroad companies occupying the same station,, what would be a reasonable time to bring a train into a station for the purpose of allowing passengers to enter might be very different than if the defendant was alone occupying the station. All the conditions under which the defendant was there, including, reasonable requirements of the Troy Union Railroad Company, should be considered in determining whether there was reasonable necessity for the presence of the train in the station, and for its partial occupancy of the highway at the time.

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