Wagner v. Brooklyn Heights Railroad , 88 N.Y.S. 791 ( 1904 )

Woodward, J.:

If the law of negligence on the part of a common carrier is to-stop short of absolute insurance after the purchase of a ticket, it seems to me that the defendant cannot be held liable under the conceded facts in this case. This accident occurred shortly after five-thirty-six in the afternoon of the 18th day of November, 1901. The plaintiff reached the New York end of the Brooklyn Bridge at the hour named, by way of the Third Avenue Elevated railroad. He purchased a ticket at one of the defendant’s booths on the second or mezzanine floor of the bridge, and passed along, intending, to go to his- home by way of the Lexington Avenue Elevated railroad. . To do this it was necessary to pass up a stairway to the floor above, and at the foot of this stairway the defendant main-, tained two ticket-chopping boxes, in charge of attendants, where the intending passenger deposited his ticket. After passing the ticket booth, which was twenty-five or thirty feet in front of these ticket-chopping boxes, the plaintiff went forward about eight feet, when he was stopped by the crowd which had preceded him, and which was held in check at the foot of the stairway by a chain which had been placed across the passageway, owing to a blockade on- the elevated road above. This floor of the bridge was not in control of the defendant; it was a public way, and was reached by various stairways, by elevated railroads, etc., and was open to persons desiring to walk over the bridge. It was in the police control of the city of New York, and the only right which the defendant had upon this .floor of the bridge was to maintain the booth and the ticket-chopping boxes, which were, subject to the regulation of the bridge authorities. There is some conflict of evidence as to whether the defendant’s agent in the ticket booth ceased selling tickets as soon ■as it was known that there was a blockade which prevented people' from passing up the stairway and across the bridge in the defend-, ant’s cars; but in view of the fact that the defendant did not have control of the approaches, and it is well known that passengers do not always find it necessary to purchase tickets at each passage, there could be no element of negligence in selling tickets, especially as the learned counsel for the plaintiff asked to .go to the jury upon the single question of whether the ticketmhopping box, which caused the injury, was securely fastened. The defendant’s booth and its ticket-chopping boxes had been in the same situation for several years; the evidence showed that about 140,000 people cross on the bridge cars every twenty-four hours, and the testimony was undisputed that the tickét-chopping box, as to which negligence is alleged, was securely fastened to the cement floor by braces and bolts. No other accident, so far as appears, had ever happened in the manner of the one now under consideration, and the accident in question could not have happened except for the willful misconduct of the people who were there assembled, and who refused to obey the policemen who were there, for the purpose of maintaining order. With things in this situation,' with no reason, based upon a long experience, to expect that the crowd would do anything unlawful in its eagerness to reach the cars of the defendant, the plaintiff stood in the crowd waiting for a move forward. He knew the situation; knew that the chain was up, which was a reasonable precaution on the part of the defendant to prevent an overcrowding of its platform above, and which we have recently held was its duty. The crowd began to move forward, the plaintiff moving with it. When he readied the point where he intended to deposit his ticket the box had been torn down by the crowd, which had burst through the chain barrier and pushed over the box, and the plaintiff was carried along by the crowd, stumbling- over the fallen box, receiving the injuries for which he now seeks recovery.

Where is the negligence of the defendant?'' It was shown by undisputed evidence that the ticket-chopping box was set in a manner which was calculated to withstand any reasonable pressure which might be brought to bear upon it; that it was so strongly fastened that the bolts or scréws were pulled through the wood, which was in good condition, in pushing the box over. It was not the duty of the defendant to erect boxes which could not be displaced by any amount of pressure; it owed the duty only of exercising reasonable care, and certainly where the boxes were guarded primarily by a chain, and they were not erected for the purpose of. a barricade, but merely for the purpose of receiving the tickets of the persons passing through, it cannot be said that there was any lack of reasonable care in the erection and maintenance of this box, when it .was shown that it, withstood sufficient pressure to draw bolts through good sound wood. The box had stood there for years; thousands of people had passed it, and it had never failed to answer all of the purposes for which it was designed. All of the experience of the defendant with this and similar boxes had never produced an accident, so' far as appears from, the evidence, and it was not bound to anticipate that a mob would override the chain barrier, crush down its ticket-chopping box and produce a situation Which would cause injury to its intended passengers. The defendant had no power to prevent the .assembling of a mob at this point; if it had stopped selling tickets there was nothing to prevent the crowd assembling under a constant pressure from the rear, and the defendant, in making an effort to prevent the overcrowding of its platform above, was justified, and, indeed, it was its duty, to place a barrier across the stairway leading to the floor above. Having done this, and having maintained a servant there to guard the ticket-chopping boxes and to prevent the passage of persons to the stairway, in the absence of complete police control, it had done all that it was required to do, and if a mob, overriding these barriers and unlawfully crushing down the defendant’s box, which had been securely placed, produced a condition resulting in the plaintiff’s injury, the defendant cannot, in morals or in law, be held responsible for the result.

The cases of McGearty v. Manhattan R. Co. (15 App. Div. 2) and Dawson v. New York & Brooklyn Bridge (31 id. 537) both proceed upon the theory that the defendant, having control of the premises, was responsible for an overcrowding of such premises endangering the lives or limbs of its passengers, but in the case at bar the evidence is undisputed that the defendant was not in a position to control the assembling of the crowd; it was not responsible for the police control, and it was actually engaged in an effort to prevent an overcrowding of the platform above, which was in its control, at the time when the crowd overrode 'its barriers and crushed down its box. It is not shown that the chain which was used was inadequate for the purpose, as measured by the experiences of the defendant; it is a matter of common knowledge that people at railroad stations and other public places do not, as a rule, undertake to disregard barriers of this character, or to forcibly push out of the way those who are lawfully in charge of ticket-chopping boxes or other necessary appliances, and the defendant, with its. long experience, dealing with crowds under all the varying circum- ■ stances incident to moving thousands of people each day, had no-reason to anticipate this unlawful conduct on the part of the people who were upon this public space of the Brooklyn Bridge, and who. were subject to the police control of the city of New York. The-ticket-chopping boxes appear from the evidence to have been placed, bolted and braced with much more of care than would seem to be necessary when such pressure was required as to literally tear out the bolts from sound wood before the box was overturned; and to-say that a jury had the right to guess that there was any negligence in this respect is to hold the defendant" as an insurer, not as one liable only for the exercise of reasonable care. The box was not. there to withstand the onslaught of a mob; it was there, properly guarded by a chain across the passageway, to receive tickets as persons lawfully passed the point, and if a crowd, which the defendant, could not limit or control, forced its way through the chain barrier and committed a trespass upon the defendant’s property, it cannot .be held to have been guilty of negligence toward one who constituted a part of this crowd. He was injured by the wrongful conduct of the crowd which had assembled, and which the defendant was powerless to. prevent, and he has no grievance against the defendant.

The judgment dismissing the complaint should be affirmed, with costs.

All concurred, except Hooker, J., who read for reversal.