Dillayev. New York Central Railroad Company.

until he fell into it. It also appeared that there was no other way of getting from the ticket office to the passenger car, without climbing fences and going through the lands of individuals.

When the evidence on the part of the plaintiff was closed, the defendant's counsel moved for a nonsuit, on the ground that there was not sufficient evidence to sustain the action, and that the evidence on the part of the plaintiff showed that negligence on his part contributed to the injury. The court stated that it was unnecessary to inquire whether there was negligence on the part of the plaintiff, and held and decided:

1st. That there was not sufficient evidence to justify the jury in finding that the defendant invited travel upon the cattle train, which the plaintiff intended to take at the time of the injury, but that, on the contrary, it was quite apparent that the defendant took passengers upon said train only at their request, and to accommodate those who were anxious to avoid the delay of waiting for the regular passenger train.

2d. That the defendant was not bound, under the evidence, to furnish a safe way to the passenger car in the rear of the freight train for persons desiring to take passage, or for the plaintiff, under the circumstances of the case.

3d. That the defendant was not a common carrier of passengers by the train in question.

4th. That the defendant was under no duty to the public, or to the plaintiff, to provide a safe way to the rear car, to enable him to pass the excavation in question, on his way to take passage upon said train; and the court stated that if the defendant was a common carrier of passengers by the train, it was bound to stop the cars at the depot.

5th. That whether the cattle-guard was a nuisance in the highway, was a question between the defendant and the authorities of the town; and that as the plaintiff was not interested in the highway, he could not recover on the

Dillayev. New York Central Railroad Company.

ground that the cattle-guard might be found to encroach on the highway as it was originally laid out.

The counsel for the plaintiff requested the court to submit to the jury all the questions of fact in the case, including those decided by the court as aforesaid, and also the right of the plaintiff to recover upon the whole facts.

The court refused to submit any of the questions of fact to the jury, and thereupon nonsuited the plaintiff.

The counsel for the plaintiff excepted to the first, second, third, and first branch of the fourth and fifth propositions held and ruled by the court as aforesaid, and to each of them, respectively; and also to the refusal of the court to submit the questions of fact to the jury as requested, and also to the ruling of the court, granting the motion for a nonsuit.

Charles Andrews, for the plaintiff.

Pratt, Mitchell & Brown, for the defendant.

FOSTER, J. The cause has been ably argued by the respective counsel, and several adjudged cases have been referred to, to sustain the positions which they have advanced; but although the questions pending in the case are important, and of much interest to the parties and to the public at large, the difficulty of the case lies more in the determination of the true character of the train in question, than in the rules of law applicable to it, when that character is ascertained.

If it was a freight train merely, upon which the company unwillingly permitted persons occasionally, in cases of emergency, or for the particular accommodation of such persons, alone, to ride thereon, then the company owed. no duty towards them which has not been performed; and on the other hand, if it was a passenger train as well as a freight train, intended by the defendant for the trans

Dillayev. New York Central Railroad Company.

portation of way passengers as well as of cattle, or other freight, then I think it owed a duty to the passengers whic has not been performed.

The real question therefore is, was this a freight trai merely, or a passenger train as well as a freight train. Au ordinary freight train is intended exclusively for the transportation of property and such employees of the company as are deemed necessary to transact the business of the train on the road. It never has a passenger car attached to it, except when some peculiar and uncommon circumstance renders it necessary. It has quite frequently and generally a small car at its rear end, which in this case i find is called a "cab," sufficient to carry the employees of the company, in which it sometimes happens that a passenger is admitted. There are also trains which are denominated "cattle trains," and they too usually have a "cab" attached, for the use of the employees of the road and of the owners or agents having the cattle in charge, and usually such trains are confined to the carrying o such employees and persons having charge of the cattle; though it sometimes happens that other passengers are carried in such trains. Such trains are undoubtediy freight trains; and it cannot be expected that the company should owe any duty to passengers who apply to ride on them, except to use ordinary care, in their behalf, while they are on board of the train.

Such trains have a conductor, whose business it is to see that the train has proper dispatch, and who has charge of the business connected with the freighting, but has no authority to admit on board such train, as passengers. persons who are not connected with the freight which ne carries, or others, except by the direction of some superior officer of the company; and hence it is, that, as to passengers on such trains, there is no such obligation towaras them as is the case in regard to those on passenger trains, and such trains, if through trains, stop only when by the

Dillayev. New York Central Railroad Company.

time tables of the company it becomes necessary for them to get out of the way of faster trains, running behind them, on the same track, or when necessary for taking on wood or water.

Was the train in question mainly or essentially of the above character? It ran every afternoon and evening from Rochester to Syracuse. It had an ordinary passenger car attached, which, of course, could contain at least fifty passengers. It had a conductor, who, in addition to his agency, in regard to the freight, was accustomed, at all his stopping places, to take on all passengers who applied to him to be carried on the road. He was empowered to collect the usual fare from such passengers, and he was authorized to and did collect the tickets of such persons on the train as had procured them, before entering the train. He stopped at all the way stations between Rochester and Syracuse; and he carried all passengers, male and female; and no special application was necessary to obtain a seat on board the passenger car. In short, though the main business of the train was to carry cattle, it was a part of its regular business, daily, to carry such passengers as applied. In my judgment, whatever the company chose to denominate, the train it was really a freight and passenger train.

Its character, as a passenger train, did not depend upon whether it was drawn up and stopped before the ticket office, at the several stations where it halted; and I think the court erred in supposing that if it was a passenger train, the company was bound to have the passenger car stopped in front of the station house. I am not aware that such is the duty of the company, in any case; nor can they, in most cases, do so with all of their passenger trains. Ordinarily some of the cars of a passenger train are stopped in front of the station house; but whenever the train is large, as is very often the case, sometimes containing a dozen or more cars, the most of the train will

Dillayev. New York Central Railroad Company.

be stopped nearly as far from the station as was the passenger car in question. My opinion is, that in regard to passenger trains, the duty of the company is to so stop. its cars that passengers shall have easy and safe access to and from the train, and the nearest streets or other avenues of travel.

I do not consider it a material circumstance that the company did not check baggage for the passengers on that train, or that the passengers were left to take charge of it themselves. It is certain that they never refused or declined to carry the passenger and his baggage on board of the train; and if they invited passengers to take that train, it may be a serious question whether the statute did. not require them to check all such baggage. But it is not important to determine that question here, and I therefore do not discuss it.

Is it correct to say that the railroad company did not invite passengers to take that train, or that the train was so run exclusively for the accommodation of freight?

How is a railroad company to invite passengers to their trains except by providing suitable accommodations for them to ride; stopping so that they may get the trains; and taking and carrying all who apply? How else do they invite passengers to their trains? We know, as matter of fact, that they invite passengers to them, by putting up in their ticket offices time tables, stating the regular time for trains to pass the several stations; and as matter of fact, though not testified to in the case, that the train in question was entered on their time table.

But how can it be assumed, legally, that the passenger car of that train was not attached to it solely for the accommodation of passengers? The company ran express trains on its road, which stopped only at the more important stations. It ran also way mail trains and other accommodation trains, which stopped at all stations; and which took up and left passengers at points where the express