HELEN PALSGRAF,
Plaintiff-Respondent,
AGAINST
THE LONG ISLAND RAILROAD COMPANY,
Defendant-Appellant.
Plaintiff complaining of the defendant through MATTHEW W. WOOD, her attorney, alleges:
FIRST: Upon information and belief, that all of the times hereinafter mentioned the above named defendant was and still is a railway corporation duly organized and existing under and by virtue of the laws of the State of New York.
SECOND: Upon information and belief, that at all of the times hereinafter mentioned the above named defendant owned or leased and operated and managed or controlled a railroad with the attendant tracks, crossings, locomotives, cars and stations all used by it as a common carrier for hire in and about Long island, State of New York, and particularly in and through the Borough of Brooklyn, City and State of New York.
THIRD: That at or near the tracks of the defendant's railroad in or near a locality known as East New York, City of New York, the defendant maintained a passenger station and a platform for the use of passengers in entering or leaving its trains at said place, which said station is commonly known as the "East New York" station.
FOURTH: That it was the duty of the above named defendant at all of the times hereinafter mentioned to operate its trains so that the plaintiff and other persons, who might be similarly situated could use the said platform or station at the said East New York station without danger of being injured by the passing of defendant's trains through said station, and it was the further duty of the defendant to provide a suitable and sufficient number of employees or agents at said station at a time or times when, to the knowledge of the defendant, there was habitually accustomed to be a large number of passengers congregated on said station, and when at said time and place it was known to the defendant as a habitual custom that passengers at said station congregated in such large numbers that they were accustomed to be jostled and pushed about in boarding defendant's cars in such a manner as to endanger the life and limb of such passengers, and it was further the duty of the defendant to make and enforce proper rules and regulations for the guidance and control of its employees and particularly its guards and platform men at said station at said time, so that while defendant's trains were stopped at or were passing through said station the persons on the platform thereof might be reasonably free from injury. It was further the duty of the defendant to prevent the bringing upon its passenger stations or platforms and the transportation upon its passenger trains or cars of fireworks or other inflammable and combustible substances, and to exercise such care, caution and prudence in the premises that passengers or other persons would not be allowed to bring upon and into its said stations or cars or trains any fireworks or other combustible or explosive substances.
FIFTH: That the defendant was negligent and remiss in the performance of one or more of its several duties in that on Sunday, the 24th day of August, 1924, between the hours of ten and eleven o'clock in the forenoon of said day, it failed and neglected to provide a suitable and sufficient number of employees and agents at said station at a time when, to the knowledge of the defendant, the said station was accustomed to be and was used by a large number of passengers for the purpose of boarding its said cars at said station, and when at said time and place it was known to the defendant as a habitual custom of passengers at said station to congregate in such large numbers that they were accustomed to be jostled and pushed about in boarding defendant's cars in such a manner as to endanger the life and limb of such passengers, and particularly this plaintiff, and further that it failed and neglected to make, promulgate and enforce proper rules and regulations for the guidance and control of its employees at said station so that the plaintiff and other persons on said station might be reasonably free from injury, and in that it failed to prevent the bringing in or upon the said passenger station or the carrying into its said passenger cars at said station or at some other station or place of fireworks or other explosive or combustible substances, and that by reason of the neglect of the defendant, its agents or servants, in the manner aforesaid, and in other particulars, which the plaintiff will prove upon the trial of this action, the plaintiff herein, through the negligence and carelessness of the defendant, was negligently and carelessly invited, directed, permitted and allowed to enter upon the said platform then and there crowded with people, and in close proximity to a dangerous and unexploded blast of gunpowder or some other explosive at said time and place, and that while plaintiff was lawfully upon the platform provided by the defendant at said station for the ingress and egress of passengers to or from defendant's trains at the time aforesaid, and while plaintiff was or was about to become a passenger for hire upon one of the defendant's trains at said station, an explosion of gunpowder or some other explosive substance suddenly and violently took place, by reason of which and as a direct result thereof the plaintiff was violently jostled, shoved, crowded or pushed by the force of said explosion or by the crowd of other passengers, which the defendant had negligently allowed to congregate and remain on said station at said time, or by both said explosion and jostling, so that plaintiff was knocked down or against certain of the platform stairs, inflicting upon plaintiff grievous, serious and painful injuries in and about her person and causing plaintiff to be and become sick, sore and disabled, whereby plaintiff was caused to and did suffer great pain and anguish, both of body and mind as a result of said injuries, and plaintiff moreover was made nervous and caused to and did suffer severe, grievous and lasting shock to her nervous system, including among other things, loss of control of the organs of speech, which plaintiff alleges upon information and belief, will be permanent, and plaintiff still continues to suffer pain in various parts of her body. Plaintiff was and still is unable to pursue her usual occupation and has thereby lost and will continue to lose moneys she would otherwise have earned, and, as plaintiff is informed and believes, said disabilities in whole or in part will continue for a long time to come and perhaps permanently. That plaintiff has been put to great expense for medicines, medical and surgical treatment and attendance and nursing and plaintiff is informed and verily believes that she will in the future by put to great expense and necessarily have to expend or incur various and divers sums of money for medical and surgical treatment, medicines and nursing in an endeavor to be cured of her said injuries.
SIXTH: That the said injuries to the plaintiff were caused solely through the carelessness and negligence of the defendant, its agents or servants, and through no fault on the part of the plaintiff in any way contributing thereto.
SEVENTH: That by reason of the premises plaintiff has been damaged in the sum of Fifty thousand dollars ($50,000.).
WHEREFORE plaintiff demands judgment against the defendant in the sum of Fifty thousand dollars ($50,000.) together with the costs and disbursements of this action.
MATTHEW W. WOOD,
Attorney for Plaintiff,
Office & P.O. Address,
#233 Broadway
Borough of Manhattan,
City of New York
(Unverified.)
HELEN PALSGRAF,
Plaintiff-Respondent,
AGAINST
THE LONG ISLAND RAILROAD COMPANY,
Defendant-Appellant.
The defendant answering the complaint herein alleges:
I. It admits that at all times mentioned in the complaint, it was and still is a domestic railroad corporation, duly organized and existing under and by virtue of the laws of the State of New York, and that at all of said times, it owned, operated and controlled a railroad together with its appurtenances in and through the Borough of Brooklyn, City and State of New York, and that in connection with its said railroad, it maintained a passenger station and platform known as the East New York Station in the said Borough of Brooklyn, City of New York.
II. On information and belief it denies each and every other allegation contained in the complaint.
WHEREFORE, the defendant asks that the complaint herein be dismissed with costs.
JOSEPH F. KEANY,
Attorney for Defendant,
Pennsylvania Station
New York City.
(Verified December 3rd, 1924.)
At a Trial Term of the Supreme Court of the State of New York held in and for Kings County, at the Court House in the Borough of Brooklyn, on the 26th day of May 1927.
Present: Hon. BURT JAY HUMPHREY,
Justice.
HELEN PALSGRAF,
Plaintiff-Respondent,
AGAINST
THE LONG ISLAND RAILROAD COMPANY,
Defendant-Appellant.
This cause having been called for trial in its order on the Calendar, and twelve trial Jurors having been duly drawn, empanelled and sworn to try the same, the Jury come into Court and say that they find a verdict for the plaintiff in the sum of six thousand ($6000,-) dollars.
Counsel for defendant moves to set aside the verdict on all the grounds stated in Section 549 of the Civil Practice Act.
Motion denied.
Thirty days stay of execution after service of notice of entry of judgment and sixty days in which to make and serve case on appeal granted to defendant.
May 27 - 1927 - Order signed denying motion to set verdict aside.
A true extract from the minutes.
WILLIAM E. KELLY,
Clerk.
HELEN PALSGRAF,
Plaintiff-Respondent,
AGAINST
THE LONG ISLAND RAILROAD COMPANY,
Defendant-Appellant.
The issues in the above entitled action having duly come on for trial before Hon. BURT J. HUMPHREY, one of the Justices of this Court and a Jury at Trial Term, Part VII of this Court, on the 25th and 26th days of May, 1927, and the Jury having returned a verdict in favor of the plaintiff and against the defendant in the sum of Six thousand ($6,000.00) Dollars, and the costs of the plaintiff having been duly taxed at the sum of $142 45/100 Dollars,
Now, on motion of MATTHEW W. WOOD, Esq., attorney for the plaintiff, it is hereby
ADJUDGED that the plaintiff, HELEN PALSGRAF, do recover of the defendant, LONG ISLAND RAILROAD COMPANY, the sum of Six thousand ($6,000.00) Dollars, together with the sum of $142 45/100 Dollars, costs as taxed, making in all the sum of $6142 45/100 Dollars, and that the plaintiff have execution therefor.
Dated, Brooklyn, New York, May 31, 1927.
WILLIAM E. KELLY,
Clerk
At a trial Term, Part VII of the Supreme Court of the State of New York, held in and for the County of Kings, at the County Court House, in the Borough of Brooklyn, City of New York, on the 27th day of May, 1927.
Present: Hon. Burt J. Humphrey, Justice
HELEN PALSGRAF,
Plaintiff-Respondent,
AGAINST
THE LONG ISLAND RAILROAD COMPANY,
Defendant-Appellant.
The issues in this action having regularly come on trial before Hon. Burt J. Humphrey, one of the Justices of this Court and a Jury, at Trial Term, Part VII of this Court, on the 25th and 26th days of May, 1927, and the same having been duly tried, and the Jury having returned a verdict in favor of the plaintiff and against the defendant, Long Island Railroad Company, for the sum of Six thousand dollars ($6,000.00), and the defendant having moved to set aside the verdict and have a new trial on all the grounds contained in Section 549 of the Civil Practice Act, except inadequacy,
Now, after hearing WILLIAM McNAMARA, Esq., of Counsel for the defendant, in support of said motion, and MATTHEW W. WOOD, Esq., attorney for the plaintiff, in opposition thereto, and due deliberation having been had,
Now, on motion of MATTHEW W. WOOD, Esq., attorney for the plaintiff it is hereby
ORDERED that said motion be and the same hereby is in all respects denied.
Enter
BURT JAY HUMPHREY,
Justice of Supreme Court
Granted May 27, 1927
WILLIAM E. KELLY
Clerk
State and County of New York, ss:
JOSEPH F. KEANY, being duly sworn, says: that he is the attorney for the defendant-appellant herein. That no opinion was handed down by Mr. Justice Humphrey upon his denial of the defendant-appelant's motion for a new trial.
JOSEPH F. KEANY
Sworn to before me this 20th
day of July, 1927.
HARRY K. HOWLAND
Notary Public,
Suffolk County
Certificate field New York County Clerk No. 296
Certificate filed New York County Register No. 8255
Commission expires March 30, 1928
It is hereby stipulated that the foregoing case contains all the evidence given upon the trial of this action and that the same be settled and ordered on file and annexed to the Judgment Roll herein, filed in the office of the Clerk of Kings County.
Dated July 21st, 1927.
MATTHEW W. WOOD,
Attorney for Plaintiff-Respondent.
JOSEPH F. KEANY,
Attorney for Defendant-Appellant.
Upon the above stipulation the foregoing case and exceptions on Appeal are hereby settled and ordered on file and annexed to the Judgment Roll filed in the office of the Clerk of Kings County.
Dated July 21st, 1927.
BURT JAY HUMPHREY,
Justice, Supreme Court.
Pursuant to Section 170 of the Civil Practice Act, it is hereby stipulated that the foregoing are true and correct copies of the Case on Appeal herein, the Judgment Roll, the Case and Exceptions, as settled, and the whole thereof, all of which are now on file in the office of the Clerk of Kings County had certification thereof by the Clerk is hereby waived.
Dated July 21st, 1927.
MATTHEW W. WOOD,
Attorney for Plaintiff-Respondent.
JOSEPH F. KEANY,
Attorney for Defendant-Appellant.
Pursuant to Section 616 of the Civil Practice Act, it is ordered that the foregoing Printed Record be filed in the office of the Clerk of the Appellate Division of the Supreme Court of the Second Department.
Dated July 21st, 1927.
BURT JAY HUMPHREY Justice, Supreme Court.
HELEN PALSGRAF,
Plaintiff-Respondent,
AGAINST Notice of Apepeal
THE LONG ISLAND RAILROAD COMPANY,
Defendant-Appellant.
Sirs:
PLEASE TAKE NOTICE that the defendant, The Long Island Railroad Company, hereby appeals to the Court of Appeals of the State of New York from an order made by the Supreme Court, Appellate Division, Second Judicial Department, on December 9th, 1927 and entered in the office of the Clerk of the said Appellate Division on the same date which order affirmed a judgment entered herein in the office of the Clerk of the said Appellate Division on the same date which order affirmed a judgment entered herein in the office of the Clerk of the County of Kings on the 31st day of May 1927, in favor of the plaintiff and against the defendant in the sum of Six Thousand, One Hundred forty two and forty five one hundredths Dollars ($6,142.45), and also affirmed an order denying the motion of the said defendant to have the verdict set aside and to have a new trial, entered in the office of the Clerk of the County of Kings on the 27th day of May 1927.
AND YOU WILL FURTHER TAKE NOTICE, that the defendant, The Long Island Railroad Company also appeals to the said Court of Appeals from a judgment of affirmance entered upon the said order of the Appellate Division, Second Department, in the office of the Clerk of the County of Kings on the 16th day of December 1927 for the sum of One Hundred and twenty eight one hundredths Dollars ($100.28).
AND YOU WILL FURTHER TAKE NOTICE, that the defendant, The Long Island Railroad Company appeals from each and every part of the said Order of Affirmance of the said Appellate Division and from each and every part of the Judgment of Affirmance entered thereon, as well as from the whole thereof.
Dated, New York, December 27th, 1927.
JOSEPH F. KEANY,
Attorney for Defendant-Appellant,
Office & P. O. Address:
Pennsylvania Station,
New York City.
To:
MATTHEW W. WOOD, Esq.,
Attorney for Plaintiff-Respondent
233 Broadway,
Borough of Manhattan,
New York City.
WILLIAM E. KELLY, Esq.
County Clerk of the County of Kings
Brooklyn, New York
At a Term of the Appellate Division of the Supreme Court of the State of New York held in and for the Second Judicial Department at the Borough of Brooklyn on the 9th day of December, 1927.
Present--
HON. EDWARD LAZANSKY, Presiding Justice
J. ADDISON YOUNG
WILLIAM F. HAGARTY Justices
ALBERT H. F. SEEGER
WILLIAM B. CARSWELL
HELEN PALSGRAF,
Respondent,
AGAINST Order of Affirmance on Appeal from Judgment.
THE LONG ISLAND RAILROAD COMPANY,
Appellant.
The above named LONG ISLAND RAILROAD COMPANY, the defendant in this action, having appealed to the Appellate Division of the Supreme Court from a judgment of the Supreme Court entered in the office of the Clerk of the County of Kings on the 31st day of May, 1927, and from an order made by said Court denying a motion for a new trial herein, and the said appeal having been argued by Mr. William McNamara, of Counsel for the appellant, and argued by Mr. Matthew W. Wood, of Counsel for the respondent, and due deliberation having been had thereon,
IT IS ORDERED AND ADJUDGED that the judgment and order so appealed from be and the same are hereby affirmed, and that the respondent recover of the appellant the costs of this appeal. Opinion by Seeger, J. Hagarty and Carswell, JJ. Concur. Lazansky, P.J. and Young, J. Dissent.
Enter,
J. ADDISON YOUNG,
Associate Justice.
HELEN PALSGRAF,
Plaintiff,
AGAINST
THE LONG ISLAND RAILROAD COMPANY,
Defendant.
JUDGMENT of the 16th day of December, 1927.
The appeal taken by the defendant in the above entitled action having been heard at an Appellate Division of the Supreme Court, held in and for the Second Judicial Department, on the 21st day of October, 1927, and an order having been made and entered affirming the judgment of the Supreme Court, Kings County, entered in said action on the 31st day of May, 1927, in the office of the Clerk of the County of Kings, with costs of said appeal to the respondent.
Now, on motion of MATTHEW W. WOOD, Esq., Attorney for the plaintiff-respondent, it is hereby
ADJUDGED that the said judgment appealed from be and the same is hereby wholly affirmed, and that the respondent recover from and against the appellant, LONG ISLAND RAILROAD COMPANY, the sum of One hundred and 28/100 dollars ($100.28) costs of said appeal.
WILLIAM E. KELLY,
Clerk.
Helen Palsgraf, respondent, v. The Long Island Railroad Company, appellant.
Judgment and order affirmed, with costs. Opinion by Seeger, J. Hagarty and Carswell, JJ., concurs, dissents and reads for reversal.
Lazansky, P.J., Young, Hagarty, Seeger and Carswell, JJ.
HELEN PALSGRAF,
Respondent,
AGAINST
THE LONG ISLAND RAILROAD COMPANY,
Appellant.
APPEAL by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the Clerk of the County of Kings on the 31st day of May, 1927, upon a verdict rendered by a jury; and from an order, entered in said clerk's office on the 27th day of May, 1927, denying defendant's motion for a new trial.
WILLIAM McNAMARA, for the appellant.
MATTHEW W. WOOD, for the respondent.
SEEGER, J.:
The action was brought to recover damages resulting from negligence. The plaintiff was a passenger intending to take a train of the defendant at the defendant's East New York passenger station, on the 24th day of August, 1924. While plaintiff was at the station waiting for her train, another train came into the station. After this train had started from the station, two young men came up and undertook to board it while the train was in motion. One of these men had a bundle under his arm. Two of the defendant's employees undertook to help him on the train while it was in motion, one of them the trainman and the other the man on the platform. During their efforts to assist the man on to the moving train these men knocked the bundle out from under the passenger's arm and it fell under the train. The bundle contained explosive fireworks which exploded and caused a large scale, near which the plaintiff was standing, to be thrown against the plaintiff, severely injuring her. There was no evidence to show that the passenger carrying the bundle had any authority or permit under the Greater New York Charter to carry or transport fireworks, or of the value of the fireworks, and it does not appear that the provisions of the Charter were violated. (§ 92 of Article 6, subd. 6, Greater New York Charter.)
The defendant contends that the accident was not caused by the negligence of the defendant.
The sole question of defendant's negligence submitted to the jury was whether the defendant's employees were "careless and negligent in the way they handled this particular passenger after he came upon the platform and while he was boarding the train." This question of negligence was submitted to the jury by a fair and impartial charge and the verdict was supported by the evidence. The jury might well find that the act of the passenger in undertaking to board a moving train was negligent, and that the acts of the defendant's employees in assisting him while engaged in that negligent act were also negligent. Instead of aiding or assisting the passenger engaged in such an act, they might better have discouraged and warned him not to board the moving train. It is quite probable that without their assistance the passenger might have succeeded in boarding the train and no accident would have happened, or without the assistance of these employees the passenger might have desisted in his efforts to board the train. In any event, the acts of defendant's employees, which the jury found to be negligent, caused the bundle to be thrown under the train and to explode. It is no answer or defense to these negligent acts to say that the defendant's employees were not chargeable with notice that the passenger's bundle contained an explosive. While there seems to be no precedent for this case, every case must stand upon its own facts. In principle the case is similar to the squib case (Scott v. Shepherd, 2 Wm. Bl. 892), where a lighted squib was thrown in or near a crowd of people, and it was successively thrown by two or more persons until it landed upon and burned the plaintiff; or the Negro boy case (Vanderburgh v. Truax, 4 Denio, 464), where a boy in escaping a threatened attack of the party pursuing him ran against and knocked out the faucet of a cask of valuable wine, destroying it. The pursuing party was held liable for the loss. Also the balloon case (Guille v. Swan, 19 John. 381, where the defendant, while in a balloon, descended in a garden under circumstances which tended to invite people to go to this assistance and in doing so the vegetables in plaintiff's garden were trampled upon and destroyed, for which the defendant was held liable.
It must be remembered that the plaintiff was a passenger of the defendant and entitled to have the defendant exercise the highest degree of care required of common carriers.
The judgment and order appealed from should be affirmed, with costs.
LAZANSKY, P. J. (dissenting):
The facts may have warranted the jury in finding the defendant's agents were negligent in assisting a passenger in boarding a moving train in view of the fact that a door of the train should have been closed before the train started, which would have prevented the passenger making the attempt. There was also warrant for a finding by the jury that as a result of the negligence of the defendant a package thrown between the platform and train exploded, causing injury to plaintiff, who was on the station platform. In my opinion, the negligence of defendant was not a proximate cause of the injuries to plaintiff. Between the negligence of defendant and the injuries, there intervened the negligence of the passenger carrying the package containing an explosive. This was an independent, and not a concurring act of negligence. The explosion was not reasonably probable as a result of defendant's act of negligence. The negligence of defendant was not a likely or natural cause of the explosion, since the latter was such an unusual occurrence. Defendant's negligence was a cause of plaintiff's injury, but too remote.
The judgment should be reversed, with costs to the appellant, and complaint dismissed, with costs.
Pursuant to Section 170 of the Civil Practice Act, it is hereby stipulated that the foregoing case contains true copies of the notice of appeal to the Court of Appeals, the judgment and order of affirmance, the opinion of the Appellate Division of the Supreme Court, Second Department, and remittitur or record upon which the court below acted in making said judgment and order of affirmance, and the whole thereof, now on file in the office of the Clerk of Kings County, and certification thereof pursuant to Section 616 of the Civil Practice Act or otherwise is hereby waived.
Dated, January 24, 1928.
MATTHEW W. WOOD,
Attorney for Plaintiff-Respondent.
JOSEPH F. KEANY,
Attorney for Defendant-Appellant.
_______________________
Footnotes:
1. This refers to the particular sitting of the court at which the trial was had. Humphrey, J., was presiding over Part 7 of the Trial Term, other judges were at the same time presiding over trial in other "Parts" in other courtrooms in the Brooklyn Court House.
2. Reported in 22 App. Div. 166 (N.Y. 1927).