Mary Lynch, an Infant, by her Guardian ad Litem, John Lynch, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent, Impleaded with Earl Buttery, Defendant

Mary Lynch, an Infant, by her Guardian ad Litem, John Lynch, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent, Impleaded with Earl Buttery, Defendant. Negligence—a gravity road constructed at right angles to and upon the land of a railroad company, to ship stone—therailroad is liable as licensor for a stone car precipitated upon a passenger can' — duty of the railroad to keep its trades unobstructed-notice to its foreman and sectionmen is notice to it. In an action brought to recover damages resulting from the alleged negligence of the defendant, on whose railroad the ¡haintiff while a passenger was injured by a carload of stone being thrown through the side of the car in which she was riding, it appeared that one Buttery, the owner of a stone quarry upon a side hill above the railroad, had constructed a precipitous gravity road at right angles with the defendant’s road in order to .facilitate the shipment of stone upon the defendant’s cars, and that, by reason of the negligence of an employee of Buttery, control was lost of a carload of stone while upon Buttery’s road and it was thrown through the side of the passenger car. The railroad corporation consented to the building of the gravity road, thirty feet of which were upon its land, and the foreman and sectionmen of the railroad corporation knew that upon two occasions, within a year of the accident in question, loaded cars on the gravity road had escaped control and been precipitated upon the tracks of the railroad corporation. Meld, that Buttery was a licensee of the railroad corporation, which consequently became liable for his negligence and that of his employees; That the railroad corporation was bound to exercise the greatest vigilance to keep its tracks clear from obstructions animate and inanimate, and that it was liable to the passenger who was injured by its failure to perform this duty; That notice to the foreman and sectionmen of the railroad corporation, while in the discharge of their duties, was notice to the railroad corporation of the previous escape of cars; ■ • That the jury might have found, from the manner in which the gravity road was constructed and operated, that the railroad corporation was negligent in uniting in its construction and in permitting it to be operated as it was. Appeal by the plaintiff, IVIary Lynch, an infant, by her guardian ad litem, John Lynch, from a judgment of the Supreme Court in favor of the defendant, the New York Central and Hudson River Railroad Company, entered in the office of the clerk of the county of Niagara on the 15th day of April, 1896, upon an order granted at a Trial Term of the Supreme Court, held in and for the county of Niagara, dismissing the plaintiff’s complaint as to the defendant, the New York Central and Hudson River Railroad Company. This action was begun October 17, 1894, to recover damages for personal injuries caused, it is alleged, by the negligence of the defendant. The respondent owns and operates a steam railroad along the east bank of Niagara river, between Lewiston and Suspension Bridge. June 27, 1894, the plaintiff held a ticket entitling her to ride on the respondent’s road from Suspension Bridge to Lewiston and return. She made the trip from Suspension Bridge to Lewiston in safety, and later in the day took passage on one of defendant’s trains to return to Suspension Bridge'. While on her return, a car loaded with stone was precipitated through the side of the passenger car in which she was riding, by means of which her skull was fractured and other serious injuries inflicted. At the time of the accident, Earl Buttery was, and for about two years had been, the owner of and engaged in working a stone quarry on the east side of and abutting on the respondent’s railroad. This quarry is located on the side of a hill about eighty feet above the main tracks of the respondent’s railroad. To facilitate the shipment of stone by the respondent’s cars, it constructed a side track about twenty-five feet east of its east main track, on which side track the cars on which the stone was loaded were placed. Immediately east of the east rail of this side track, and on the respondent’s land, a platform was constructed nine feet wide, and higher than the side track. From this platform Earl Buttery constructed a double-track gravity road to his quarry, which is 188 feet in length, 158 feet of it being on his own land and 30 feet of it on the land of the railroad. This gravity road intersects the railroad at right angles. Its gauge is about three feet, and the two independent tracks are about two feet and two inches from each other. The highest point of the gravity road is in the quarry, and 73 feet higher than the platform. From this point, descending to the west towards the platform, there is a grade or fall of 10 feet in the first 75 feet; the grade then changes, and from the point where it changes to the platform the distance is 113 feet. This point at which the grade changes is 63 feet above the platform, so that there is a fall of grade of 63 feet in 113 feet. This gravity road was operated by two cars, each being about eight feet long and four and one-half feet wide, mounted on four wheels. The cars were so connected that when one loaded with stone was let down to the platform an empty car was drawn back from the platform to the. quarry, was there loaded, and let down to the platform. These cars were lowered and raised by a wire cable attached to a drum in a building at the quarry, called the drum house. A brake was applied to the drum, around which the cable wound by means of a lever operated by a man stationed at the drum house. By the application of the brake the velocity of the'descending ear loaded with stone was sought to be, and generally was, controlled. But on two occasions, and within a year before this accident, a loaded car escaped and was precipitated on to, and on one occasion over, the main tracks of the respondent’s road. The sectionmen employed by the respondent knew of these accidents, helped clear the main tracks of the stone which fell from the car, and the respondent’s foreman on this section of the railroad knew of both accidents. On the occasion in question a car was loaded with stone at the quarry and pushed by the employees of Buttery along the level portion of the track lying in the quarry until the car reached a point on this road where it would run by the force of gravity down to the platform on the respondent’s railroad. The men who pushed the car into place supposed that the employee whose duty it was to operate the drum and brake was at his station, and they shouted to him that the car was ready to go down and that a train was approaching on the railroad; but for some reason the brake was not applied, or, if applied, failed to control the movement of the loaded car. The evidence tends to show that the man whose duty it was to operate the brake was not at his station in the drum house, and that the velocity of the descending car was in nowise controlled. At the moment when this descending car reached the respondent’s track, the train on which the plaintiff was riding passed, and the stone car dashed over the platform and through the side of the passenger car, injuring the plaintiff, as hereinbefore stated. There was some evidence that the drum and the appliances for controlling the movement of the stone car were crude and not well constructed. On the trial a nonsuit was granted hi favor of the railroad company, and a verdict was recovered against Earl Buttery for $2,750. P. F. King, for the appellant. Charles A. Pooley, for the respondent. [MAJORITY — Follett, J.:] Follett, J.: It is not asserted by the respondent that the plaintiff contributed in any way to the accident, nor is it asserted by her that the employees on the respondent’s passenger train were negligent in its management. The evidence in this case presented two questions of fact which ought to have been submitted to the jury; and in case either had been found in favor of the plaintiff she would have been entitled to recover: (1) Did the negligence of Earl Buttery, the quarryman, or of his employees, cause the accident 1 (2) Was the respondent negligent in permitting the gravity road to be constructed and operated partly on its own land in the manner described by the evidence 1 It was conceded, on the trial that the respondent built the side track and built, or permitted the quarryman to build, the platform which was wholly on the respondent’s land, and permitted the quarryman to build the gravity road, partly on its land and partly on his land, for the benefit of both. The gravity road being built and operated partly on the land of the respondent by the quarry-man, he was a licensee of the respondent which became liable for the negligence of the quarryman and of his employees. (Railroad Co. v. Barron, 5 Wall. 90 ; McElroy v. Nashua & Lowell R. R. Co., 4 Cush. 400 ; Shearm. & Redf. Neg. [4th ed.] § 413; Buswell Per. Inj. § 48; Thomp. Corp. § 6293. The respondent knew how the gravity road was constructed and operated, and the fact that the negligent act which caused the injury was performéd on the land of the quarryman does not relieve the respondent from liability, as the situation was such that a negligent act on the part of the quarryman or of his employees would necessarily endanger the passengers on the road of the respondent. The gravity road was in plain sight of the respondent’s officers and employees, and it was bound to take notice of the dangers incident to its operation. A railroad is bound to exercise the greatest vigilance and care to keep its tracks clear from obstructions, animate or inanimate, and if it fails in its duty and a passenger is injured by reason of its failure, it is liable for the injuries sustained. (Donnegan v. Erhardt, 119 N. Y. 468.) The fact that external causes over which the corporation has no control sets in motion an object which is cast upon its tracks or into its cars, causing an injury to a passenger, does not exempt the railroad from liability, provided the accident might have been prevented by the exercise of foresight and due care. In case rocks on land not belonging to the corporation are set in motion by the action of the elements and are cast on the track, causing an injury to a passenger, the railroad is liable, provided the accident ought to have been apprehended and might have been prevented by the exercise of due care. When a passenger is injured, the question always is, was the accident one which should have been apprehended by the carrier? It seems to me that the accident which caused the injury to the plaintiff should have been apprehended by the managers of this corporation. These loaded cars of stone were let down this precipitous incline at right angles with the respondent’s road without anything to control or arrest their movement except the wire cable. There was no barrier between the platform and the respondent’s main tracks. On two previous occasions a similar accident had occurred, though at a time when no train was passing, and no damage was done. A trackman who had been employed by the respondent testified that, on two occasions after the cars had dashed down upon the respondent’s road, he cleared the stones from the tracks. He further testified: “After I cleared the stones off the track I told the foreman of the Central track, John Carr, about it.” Carr testified: “ I do not know of any time when those stone cars were down on the track before that day ” (referring to the day when the plaintiff was injured). But he fails to deny that he was informed by the sectionman that cars had escaped and scattered stones on the respondent’s tracks. An employee of the quarryman testified that two years before the accident in question a similar accident occurred. It is urged in behalf of the respondent that its officers had no notice of the previous accidents. The sectionmen and foreman were charged with the duty of keeping the respondent’s tracks in order and free from obstructions, and notice to them while engaged in the discharge of their duty was notice to the corporation. Notice to an agent while engaged in the discharge of his duties in respect to the matters intrusted to him, is notice to his principal. A railroad is charged with a positive and an affirmative duty to keep its tracks clear, and it cannot excuse itself from the performance of this duty by showing that the obstructions were caused' by the negligence of its licensee. This gravity road having been constructed with the assent of the railroad, partly on its land and partly on the land of the quarryman, it was bound to exercise due care to see that the gravity road was so constructed and operated that the tracks of the railroad should not be obstructed and passengers injured. In case a railroad corporation permits another to make a negligent use of its right of way and thereby a passenger is injured, the corporation is liable. It seems to me that the existence and use of this gravity road, constructed and operated in the manner described, was evidence from which the jury might have found that the respondent was negligent in uniting in its construction and in permitting it to be operated in the way that it was. Daniel v. The Metropolitan Railway Company (L. R. [3 C. P.] 216, 591; [5 H. L.] 45) is cited to sustain the contention of the respondent that a question -of fact was not presented by the evidence for the jury. In that case the city of London, pursuant to an act of Parliament, was engaged in constructing works over the line of the railway company, over which works the railway had no control. The city of London was not the licensee of the railway, which had no power to prevent or 'to control the construction of the works, as the respondent had in the case at bar, and it was held that the railway was not liable for damages occasioned to a passenger by the negligent dropping of a girder upon its passing train. It was said that the railway was not bound to employ persons to watch and see that no accident occurred from the negligence of persons whom it did not employ and could not control. In the case last cited the lord chancellor said : “ I apprehend that all that is to be done by those who carry passengers for hire is that they are bound to see that everything under their own control is in full and complete and proper order. They are bound to see, also, if there be a certain and definite risk as to which they have any knowledge or can reasonably be supposed to have any knowledge, that it is sufficiently guarded against. For instance, a trench may be dug across a road through no fault of theirs, and in such a case they could not be held to be liable; but if there is any reasonable ground for apprehending that extraordinary precaution is wanted, they would be liable.” In the case at bar the respondent had no control over the employees of the quarryman, but it authorized the construction and operation of the gravity road, partly on its land, and under such circumstances it was bound either to prevent its operation or to exercise due care that its operation should not injure its passengers. In such a case a railroad cannot exonerate itself by showing that the business had been delegated to others, for its duty is in such cases a positive one to take care as. opposed to the negative duty of not being guilty of heedlessness or rashness. Whether the respondent exercised such affirmative care in this case was a question of fact for the jury. The judgment should be reversed and a new trial granted, with costs to abide the event. All concurred. Judgment reversed and a new trial, ordered, with costs to abide the event.