Charles Clifford, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent

Charles Clifford, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent. Third Department, March 7, 1906. Negligence — injury by.bundle of newspapers thrown from moving train —'evidence — error in excluding evidence of custom of railroad to permit throwing of papers. In an action to recover damages for in j uries received by plaintiff, who was struck by a heavy bundle of newspapers thrown from the defendant’s train rum ring at a high rate of speed, it is error to excl-ude'evidence offered by the plaintiff of a custom of the defendant to allow news agents to throw such bundles of papers from its moving trains, as a railroad company permitting it is liable for fee injuries caused thereby. Appeal by the plaintiff, Charles Clifford, frornu judgment of the Supreme Court in favor of the defendant,' entered in the office of the clerk of the county of Bensselaer on the 31st day of May, 1905-, upon the dismissál of the complaint, by direction of the court after a trial at the Bensselaer Trial Term. . The plaintiff was at work upon the sidewalk in front of .an hotel at Castleton, M. Y. ’Upon the opposite side of the highway ran the defendant’s road. Upon June 19-, 1904, while the plaintiff was thus at work, one of the. defendant’s trains passed -through Castleton. 'From this train was thrown a bundle of ‘Sunday Mew York newspapers,which struck the ground with great force and, rebounding, hit the plaintiff,- knocking him down on the brick walk and rendering him unconscious. . This bundle of papers weighed . about seventydive pounds -and was thrown while the train was thus running at the rate of about sixty miles per hour. For the injury thus' received -the plaintiff has sued the defendant company. Upon the -trial the plaintiff’s complaint-’was dismissed. From the judgment-' of dismissal the plaintiff 'has here appealed. Martin A. Springsteed, for the appellant. William P. Rudd, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: .In Dwyer v. President, etc., D. & H. Canal Co. (affirmed in this department without opinion, 17 App. Div. 623) plaintiff . was walking along a highway adjoining a railroad and was.struck by a bundle of papers which was thrown from a passing train by a person who was not an employee of the railroad company . but was an. employee of a news company,which was accustomed to take its papers over this road and employed a man for the purpose' of putting them off -a| different stations. ’ In that case Justice Alton B. Barker, at the Trial Term, submitted to the jury tile question as to; whether it was the - custom thus to throw these papers from the - moving train, and as to whether that custom was known to the railroad company, charging that if the defendant in that case knew of that custom- and permitted it, it thereby became liable to the'plaintiff for any damages suffered by him therefro'm. The jury found a verdict for the' plaintiff, and‘the judgment entered, thereupon was unanimously affirmed in this court. - ' • The defendant seeks to distinguish that case from the case at bar by claiming that there is no proof here of the existence of any custom of throwing off these papers which was known to the defendant company. xThat is probably so. The lack of proof, however", seems to have been due to an erroneous ruling of the trial judge in rejecting such testimony when offered. John H. Porter was called as.a witness for the plaintiff, and swore that he purchased Sunday papers and received them by this train. He swears that he was down to the train and signaled to the man to throw off the papers where he stood. It is unnecessary to repeat here the colloquy that occurred between the counsel and the court, during which questions were asked by plaintiff’s counsel tending to show such custom, and upon objection made the evidence Was excluded. The final question was asked, “ When have you seen your papers thrown off there Sunday mornings previous to June 19,1904?” This was objected tó as before, objection sustained and exception. , Plaintiff’s counsel thereupon stated: “ If your Honor please, if this had been a custom there of throwing off papers, and the papers had come up there before, I think it is competent to show they did this as a habit repeatedly. If they were only thrown up there on this brick walk once it would be a different thing. I desire to show it for that purpose, and for that purpose I ask the question and yon give me an exception.” The court: “ You have already asked it and have already taken an exception.” After this ruling it would seem to have been an impertinence for plaintiff’s counsel to further persist in placing such evidence before the court. We are unable to distinguish this case in principle from the case heretofore decided by us, and upon the doctrine of stare decisis must reverse the judgment and order a new trial. (See, also, Snow v. Fitchburg Railroad Company, 136 Mass. 552; Galloway v. Chicago, M. & St. P. Ry. Co., 56 Minn. 346; Ohio & Mississippi Ry. Co. v. Simms, 43 Ill. App. 260.) All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.