Willetts, adm'r, &c. vs. The Buffalo and Rochester Railroad Company, 14 Barb. 585

By the Court, Marvin, J. If the death of Washington Willetts Avas caused by the Avrongful act, neglect or default of the defendants or their agents, under such circumstances as would have entitled him, if living, to maintain an action and recover damages for the injury, then this action is maintainable by his administrator. (Sess. Laws of 1847, p. 575.) It is clear, upon general principles, and upon the assumption that the deceased was sane, that the action cannot be maintained.

The evidence does not sIioav any negligence or Avant of care on the part of the agent of the defendants at the timo the injury happened, but it shoAVS great negligence and imprudence by the deceased. I am now assuming him to have been sane. Under such circumstances no action will lie. Had negligence on the part of the defendants’ agent been shown, the negligence and imprudence of the deceased Avould have prevented his sustaining any action.

The defendants were engaged in their laAvful pursuits, in a laAvful and proper manner, upon their own possessions or ioad, and the deceased was carelessly and unlawfully upon the road. It can hardly be necessary to cite authorities to show that when the plaintiff has materially contributed, by his own negligence or by his own wrongful act, to the production of the injury, he cannot recover in an action founded upon the negligence of the defendant. And in this view it is not material whether the act of putting the deceased off the car, was justifiable or not.

The act was too remote and disconnected from the act occasioning the injury. It occurred some hours before, and at a place some five miles distant. The calamity was occasioned by the negligence of the deceased. But the deceased was not sane; and we are to consider the case with that fact in it. In this view it may be material to inquire whether his removal from the car was justifiable; and whether the rule touching the negligence of the injured party is properly applicable to the case.

If the deceased was removed from the car with full knowledge of his insanity, and left upon the road exposed to danger, it would not be unreasonable to hold the defendants liable for such gross act of negligence, for any injury that might happen to him, before his committee or protector had notice and an opportunity to take care of him. Had the conductor any notice of the insanity of the deceased ? The acts of the conductor, and the attending circumstances, are minutely stated by a witness, who, under the direction of the conductor, removed the deceased from the car.

The evidence does not tend to establish the fact that the conductor had notice of or suspected any insanity. The fact that the deceased, when applied to for his ticket, produced and offered a hotel card, cannot be regarded as evidence of insanity. No part of his conduct furnished sufficient evidence of insanity to put ""'the conductor upon his guard. Neither the conductor nor the witness had any suspicions of insanity, or that any thing was wrong with the deceased, until he was removed from the car, and then the witness recollects as he looked up he had a sort of wild, scared look, about his eyes.

It does not appear that he communicated this to the conductor, but he asked if there was any thing the matter with the man, and the conductor remarked that he was one of the stubborn kind. The father of the deceased states that he had the appearance of a sane man save his eyes, which had a sort of wild stare. No notice had been given to the conductor, or in the cars, so far as we learn from the case. It seems to me the evidence falls far short of notice to the conductor. It is, however, argued that as the fare of the deceased had been paid to Buffalo, the act of the conductor cannot be justified.

Our attention has been directed to a provision in the general railroad act of 1850, (Sess. Laws, p. 231, § 35,) which makes it lawful for a conductor, if a passenger refuses to pay his fare, to put him and his baggage out of the cars. Here the fare was in fact paid at Utica, and double tickets obtained through to Buffalo. The fare was not paid to the conductor who removed the deceased, and he had no notice that the fare had been paid. Is it not the duty of the passenger, when called upon by the conductor, to exhibit the evidence of the payment of fare, or at least to give notice that his fare has been paid?

May he remain silent, leaving the conductor to understand that the fare has not been paid, and when expelled from the cars, maintain an action by showing that in fact he had paid his fare to some other agent, at a place hundreds of miles distant ? Such a rule would operate as a snare. Can it be maintained that the company and its agents are bound to know whether the particular individual has paid his fare ? This, under our present mode of traveling, would be impossible. A train of cars often contains many hundred passengers, who seat themselves in the cars promiscuously and to suit their convenience.

It is utterly impossible for any conductor to recognize and distinguish each individual, though the fare may have been paid some time previously to himself. But the fare is not usually paid to the conductor, but, as in the present case, to an agent at the office, who delivers to the passenger the number of tickets paid for.

It is necessary that carriers in steamboats, and cars upon railroads, should establish reasonable rules for the transaction of their business, and for the convenience of travelers, and they do establish rules and regulations, and it is the duty of the passenger, when apprised of them, to conform to them, in a reasonable manner. They are the terms upon which he applies for and obtains a passage, and may be regarded as an element in the contract between the carrier and the passenger. These regulations should be reasonable.

It is the duty of common carriers of passengers to convey passengers, and they should not make unreasonable rules, that would be likely to exclude them or prevent their taking passage.

An innkeeper is bound to entertain his guest, but he may refuse to receive one who conducts himself in a noisy and disorderly manner, and he may under such circumstances, compel him to leave the inn after he has been received as a guest. (Story on Bailment, § 476.) Suppose a passenger in the cars having paid his fare, conducts himself'in a disorderly, noisy and disgraceful manner, to the great annoyance of the other passengers, may not the conductor, if he refuses to desist, expel him from the cars? Would it not be his duty to do so? (See Commonwealth v.

Powers, 7 Met. 601.) The conductor should have been notified that the fare had been paid. Ho notice was given, and from what actually occurred, he had good reason to suppose that the deceased was trifling with him. In the Commonwealth v. Powers, above cited, one Hall, an innkeeper, had been in the habit of entering the depot of a railroad company and going to the cars to solicit passengers, to their annoyance, and the company had established regulations prohibiting this practice, of which Hall had notice. He however had continued the practice, against remonstrances, and was finally forbidden to enter the depot.

A day or two after, he procured a ticket, for a passage in the cars, and came into the depot and was advancing to the cars, when the master of the depot forbid his proceeding and desired him to leave the depot; and upon his persisting to advance, laid hands upon him and expelled him. Hall complained of this act as an assault and battery. He did not give any notice that he had paid fare, or that he desired to take passage in the cars.

It was held that the regulation was reasonable and proper; that the master of the depot had a right to enforce it and remove Hall; and that his having paid fare and obtained a ticket, with the bona fide intention of going in the cars as a passenger, which facts wore unknown to the master of the depot, did not make the master liable; that to put the master in the wrong, Hall should have communicated to him the facts. This case is in point. In the present case we are to keep in mind that the passenger was insane, and we may suppose incapable of giving notice; and how does this affect the case ?

As we have seen, the conductor had no notice of the insanity. Must it be held that he acted at his peril ? This would be to hold him or his principals responsible though his conduct may have been characterized by the . utmost prudence and caution. The general rule requires care—the I absence of negligence—in the party complaining.

Infants and lunatics may be incapable of exercising care, and in such cases other parties, having notice, may be held to a stricter responsibility for their negligence; but without notice, upon what principle can $ithe general rule be departed from 1 All persons incapable of ',) diligence should, and usually have, guardians to care for them: upon them the duty of care and diligence is devolved, and their negligence must, in law, be regarded as the negligence of the lincapable infant or lunatic when they have been injured, in cases arising between them and third persons acting without notice. In Hartfield v.

Roper, (21 Wend. 615,) the action was by an infant two years old. He was in the sleigh path alone, and was run over and injured. It was held that no action would lie, if the injury was not voluntary or from culpable negligence. The rule of negligence was applied to the case, and the want of care, on the part of the child’s parents, was regarded as a want of care on his part. Justice Cowen supposes the case of a lunatic, suffered to stray by his committee, lying in the road and being struck by a traveler’s sleigh, and says the neglect of the committee to whom his custody is confided shall be imputed to him.

He also laid down the rule that if an infant insists upon a right of action, he must show a compliance with the conditions upon which his right depends. The reasoning of the court in Hartfield v. Roper, is applicable to the present case. The deceased was in charge of his father, his natural guardian and protector. His father imprudently and negligently left him in the cars at Attica, without notice to any one of his condition. The lunatic changed his seat from the car where he was left, to another car.

His father returning to ¿the cars, failing to find him, seats himself with the intention of proceeding to Buffalo and then returning, instead of immediately communicating with the conductor and requesting permission to leave the cars. It would seem that he was not seriously alarmed, and perhaps from the description given of the deceased,, there was no serious cause for alarm, as he is described as being careful of himself and skillful in taking care of himself. The cars proceeded ten miles, when they were stopped, not at a station, and the deceased was put-off.

The father must have noticed the stopping of the cars, and it is somewhat strange that he should not have ascertained the cause, having an insane son in charge who, he supposed had been left at Attica, but might still be, as he was, in the cars. Had he been diligent upon that occasion, the calamity would not have happened. He had left his son without the evidence of the payment of fare. It was negligence in him not to be with his son when the tickets were demanded.

But the prominent act of negligence was leaving him, in the cars, under the charge of no one, and without notice, exposed to any and all danger that might arise from his condition. Doubtless the father was kind and generally considerate, and on this occasion supposed no evil would happen. His son was most unfortunately removed from the cars, through his negligence, the calamity followed; and however afflicting it has been, the responsibility cannot be thrown upon the defendants. [Niagara General Term, February 7, 1853.

Taggart, Marvin and Mullett, Justices.] The plaintiff, as administrator, cannot maintain this action, unless Washington Willetts, had he survived the injury, could have maintained it. (Sess. Laws, 1847, p. 275.) The same rules are therefore to be applied in considering the case, as would have been applied, had he survived and brought the action. In any view that can be taken of the case, in my opinion, the action cannot be maintained. The nonsuit was properly granted. It was not a case for the jury. (Hartfield v. Roper, 21 Wend. 623. Tonawanda Railroad Co. v. Munger, 5 Denio, 255.

The motion for a new trial must be denied.