George L. Dale, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant

George L. Dale, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant. Plaintiff was a passenger in one of defendant’s cars 5 he was seated near an open window, with his elbow on the window-sill; while passing over a bridge his elbow was struck by some substance, and his arm broken. 'In an action to-recover damages for the injury, the grounds upon which ■negligence was claimed to be imputable to the defendant were, that the .bridge, which was a truss bridge of wood, with the truss work sheathed on the inside with boards, was too narrow for the safe passage of the car, and that it was out of repair, some of the boards lining the truss work being warped and loose. These positions were controverted by defendant, It appeared that some months after the accident the bridge was removed and replaced by an iron bridge, the trusses of which did not come up as high as the window-sills of the cars, and the change of material •left more space between the sides of the new bridge and the track. The court charged the jury that they might “ take that fact into consideration in determining whether the defendants were not guilty of negligence in allowing the old bridge to remain.” Held, error. (Argued Apiil 2, 1878; decided May 21, 1878.) Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. This action was brought to recover damages for injuries alleged to have been sustained by plaintiff, caused by defendant’s negligence. On the 3d August, 1871, plaintiff was a passenger in one of defendant’s cars. He was seated near an open window, with his elbow on the window-sill. While passing over a bridge his elbow was struck by some substance and his arm was broken. The further material facts appear in the opinion. Hamilton Cole, for appellant. The court erred in charging the jury that they might, in determining whether defendant was not guilty of negligence in allowing the old bridge to remain, consider the fact that it had replaced it by a new one of iron and wider. (Dougan v. Champ. Tr. Co., 56 N. Y., 1; Salters v. D. and H. Co., 3 Hun, 338; King v. N. Y. Cent., 4 id., 776; Payne v. Troy and B. Co., 9 id., 526; Sewell v. City of Cohoes, 11 id., 626; Baird v. Daly, 68 N. Y., 547.) Plaintiff was chargeable with notice of the character and location of the bridge. (Mersey Dock v. Gibbs, 11 H. of L. Cas., 687; McClurg's Case, 56 Pa., 294, 297, 298; 7 All., 207; 39 Ind., 329; 5 Bush., 1.) The court should have charged as requested, that defendant’s agreement or undertaking to carry the plaintiff safely was conditioned upon his keeping himself entirely within the limits of the car intended for and appropriated to passengers. (Todd v. Old Colony Co., 3 All., 18; 7 id., 207; I. and C. Co. v. Rutherfurd, 29 Ind., 82; Pitts, and McC. Co. v. McClurg, 56 Pa., 294; Pitts., etc., Co. v. Andrews, 39 Md., 329; L. and N. Co. v. Sickings, 5 Bush., 1; Holbrook v. U and S. Co., 12 N. Y., 236; State v. Grand Trunk Co., 56 Me., 176; Palmer v. Kelly, 56 N. Y., 637; Algur v. Gardner, 54 id., 364; Rouse v. Lewis, 2 Keyes, 359; Storey v. Brennan, 15 N. Y., 526, 528; Lakey v. Loomis, 2 Hun, 516; Underhill v. Harlem Co., 21 Barb., 489; Brague v. Lord, 67 N. Y., 500; Booth v. B. and A. Co., 67 id., 593.) The court should have charged that the proof was insufficient to hold the defendant, on the ground that the boards on the side of the bridge were loose so as to be dangerous to passengers. (Cotton v. Wood, 98 C. L., 566; Banlec v. Harlem Co., 59 N. Y., 366; MeCaig v. Erie Co., 8 Hun, 602; Morrison v. N. Y. and N. H. Co., 32 Barb., 574; Lewis v. B. and O. Co., 13 A. L. R. [N. S.], 286; Fay v. Grimstead, 10 Barb., 321, 322; Underhill v. Harlem Co., 21 id., 489; Moore v. Erie Co., 7 Lans., 40.) It was error to receive evidence as to what width between the outside of the window and the side of the bridge would constitute a properly constructed bridge. Swartwout v. N. Y. Cent., 7 Hun, 571; T. P. and W. Co. v. Conroy, 68 111., 560; Jeff. Ins. Co. v. Cotheal, 7 Wend., 72; Payne v. Hodge, 7 Hun, 612.) The fact of the accident raised no presumption of negligence against defendant. (Gandy v. C. and N. W. Co., 3 Iowa, 420; Losee v. Buchanan, 51 N. Y., 476; Curran v. Warren C. and M. Co., 36 id., 156; Curtis v. R. and S. Co., 18 id., 538; Egerton v. Harlem Co., 39 id., 229; Reed v. N. Y. Cent., 56 Barb., 493; Brehm v. G. W. Co., 34 id., 256; Christie v. Griggs, 2 Camp., 79; Holbrook v. U. and S. Co., 12 N. Y., 236.) Horace E. Smith, for respondent. Defendant was bound to use every precaution which human skill, care and foresight can provide in adopting new improvements on its road for the protection of its passengers. (Caldwell v. N. J. Stbb. Co., 47 N. Y., 282, 288; Holbrook v. U. and S. R. Co., 12 id., 236, 243; S. & R. on ,Neg., § 447.) Plaintiff was only bound to exercise that ordinary prudence and attention a person would use under the ciihumstances. (S. & R. on Neg., § 282; Cook v. N. Y. C R. R. Co., 3 Keyes, 479; Ernst v. H. R. R. R. Co., 35 N. Y., 9, 26.) Proof as to the width of the bridge was proper. (Brehm v. G. W. R. Co., 34 Barb., 256, 260, 275-276; Wild v. N. Y. and Austin S. M. Co., 59 N. Y., 644; McGrath v. N. Y. and H. R. R. R. Co., 63 id., 522; West, and Phila. R. R. Co. v. McElwee, 67 Penn. St., 311.) [MAJORITY — Rapallo, J.] Rapallo, J. The grounds upon which negligence was claimed to be imputable to the defendant were, that the bridge was too narrow for the safe passage of the car in which the plaintiff was riding, and that the bridge was out of repair, some of the boards on the side being loose and warped, and liable to project; and it was urged on the trial that the injury to the plaintiff’s arm was attributable to these defects in the bridge. All these positions were controverted by the defendant. It claimed that the side of the car not having come in contact with any part of the bridge the plaintiff’s elbow could not have been hit, unless it projected out of the window, beyond the side of the car, and that it was negligent on his part to occupy the window with his arm, or to allow any part of his arm to project out of it. It appeared in evidence that the bridge in question was constructed of wood. It was a truss bridge, the inside of the truss-worlc being covered with a sheathing of boards. The distance between the outside of the window-sill of the car and the inside of the truss-work on the side on which plaintiff was sitting was seven inches. The bridge had been in use a number of years before the accident, about fifty passenger trains crossing it daily. The accident took place in August, 1871. In the following year the wooden bridge was taken down and a new one of iron placed upon the same foundation. The trusses of the new bridge did not rise as high ás the window sill. Testimony was received, under objection, to the effect that on the new bridge the distance between the rails and the sides of the trusses were greater than on the old one ;' but it appeared that this difference arose from the fact that the new trusses being of iron occupied less space than the wooden ones. The judge, at the trial, submitted to the jury the question, among others, whether the old bridge was too'narrow for the cars used upon it; and he specially called their attention to the fact that it appeared that some few months after the accident a new iron bridge was built and placed upon the same foundation as the old bridge, but that it was wider, because of the material being iron instead of wood, and he charged the jury : “ You may take that fact into consideration in determining whether the defendants were not guilty of negligence in allowing the old bridge to remain.” We think that this was error. The change in the bridge, from wood to iron, was made a considerable time after the accident, and there was no circumstance or evidence connecting it in any way with that occurrence, or tending to show that it Avas other than an ordinary betterment of the road. The circumstance that the change of material left more space between the sides of the trusses and the track Avas too remote, Ave think, to have afforded legitimate ground for an inference by the jury that the change was made for the purpose of obtaining that increase of space, or that it was a concession on the part of the defendant that the old bridge was too narrow for safety. It was a mere incident of the change of material. Furthermore, the increased space was of no importance as bearing upon the safety of passengers, when resting their arms upon the windoAV-sills, for in the new bridge the trusses Avere not as high as the sills. The case is not analogous to those in which evidence has been admitted of the repairing of a road immediately after an accident. In such a case the making of the repairs may be regarded as some evidence that they were needed, and consequently that the road was out of repair. But this was not a case of repairs. It was a change in the material and construction of the bridge, made long after the accident, and an improvement which may have been induced by considerations having no reference whatever to the safety of the arms of passengers. There was a great deal of testimony as to the old bridge being in safe condition at the time of the accident, and from the prominence given in the charge to the fact of its subsequent replacement by an iron bridge, that circumstance may have been the turning point in the mind of the jury. We think that this change bore too remotely, if at all, upon the question to justify its submission to the jury as a ground for finding negligence in using the old bridge, and that upon this exception a new trial should be granted. As the other exceptions may not arise upon a new trial it is not necessary now to pass upon them. The judgment should be reversed and a new trial granted, costs to abide the event. All concur, except Miller, J. absent. Judgment reversed.