INSURING SAFETY: LICENSEES.

BYRNE V. N. Y. C. & H. R. Ry. Co.

(104 N. Y. 362.-1887.)

Esek Cowen for appellant.

R. A. Parmenter for respondent.

EARL, J. There was some controversy upon the trial of this action as to whether or not the place where the plaintiff was injured was a travelled public highway, and the trial judge submitted the case to the jury upon the assumption that it was not. There was, however, evidence tending to show that there was an alley, at the place where the plaintiff was injured, which was extensively and notoriously used by the public, without any objection on the part of the defendant, or any question as to the right of all persons so to use it; and the judge charged the jury that it was a question for them to determine to what extent and in what manner the alley was used by the public; that if they came to the conclusion that the right of passage was there exercised by the public, as claimed by the plaintiff, notoriously and constantly, previous to and at the time of the accident, then they were required to determine the amount of care and prudence which the defendant was required to exercise in approaching and crossing the alley, and that then the defendant, while not absolutely bound to ring a bell or blow a whistle, yet was bound to give some notice and warning, reasonable and proper under the circumstances, in approaching the crossing; and that it was for them to determine whether such notice and warning was given. The law, as thus laid down, was fully warranted by the case of Barry v. New York Central & Hudson River Railroad Company, 92 N. Y. 289. In that case it was held that where the public, for a series of years, had been in the habit of crossing the railroad, the acquiescence of the defendant in the public use amounted to a license or permission to all persons to cross at that point, and imposed the duty upon it, as

to all persons so crossing, to exercise reasonable care in the movement of its trains so as to protect them from injury. We think that case, notwithstanding the criticisms of the learned counsel for the defendant in this case, is in entire harmony with the previous cases of Nicholson v. Erie Railway Company, 41 N. Y. 525, and Sutton v. New York Central & Hudson River Railroad Company, 66 N. Y. 243. In the three cases, the distinction between active negligence causing an injury, and mere passive negligence, was clearly pointed out. In the Barry Case, the railroad company carelessly backed its cars against the plaintiff's intestate, and thus caused his death. In the other two cases there was no active negligence, but simply an omission properly to fasten the cars which, without any human agency, moved, and thus ran against the persons injured. The recent case of Larmore v. Crown Point Iron Company, 101 N. Y. 391, was similar. There it was decided that a person who went upon the land of another, without invitation, to secure employment from the owner of the land, was not entitled to indemnity from such an owner for an injury received from a defective machine on the premises, not obviously dangerous, which he passed during the course of his journey; and that although it might be shown that the owner could have ascertained the defect by the exercise of reasonable care, yet that he owed no legal duty to a stranger so coming upon his premises which required him to keep the machinery in repair. That was plainly a case of mere passive negligence, an omission to keep a machine in repair which was not obviously dangerous. Here the ground of the defendant's liability is that its agents, engaged actively in its service, carelessly backed a car against the plaintiff and thus injured her. If she had been injured from a defect of the car or engine not obviously dangerous, the case would have been like the Larmore Case. If the car had moved upon her without any human agency, simply because it had not been sufficiently secured or fastened, then it would have been like the cases of Nicholson and Sutton.

There are points of resemblance and points of difference between the Barry Case and the other cases. Taking the points of resemblance, a plausible argument may be made to

show that the cases conflict. But taking the points of difference, then, while the distinction between the Barry Case and the other case is not so plain as a travelled highway, it is sufficient to require the application of different principles and the reaching of a different result.

The facts of this case, so far as they relate to the accident, are substantially the same as those proved upon the trial which was under review in 83 N. Y. 620, when this case first came to this court. Then we held that there was evidence sufficient for the consideration of the jury, both in reference to the plaintiff's contributory negligence and the negligence on the part of the defendant, and we see no reason to reconsider the conclusion in reference to those matters then reached. It is quite true that the evidence to establish freedom from negligence on the part of the plaintiff, and negligence on the part of the defendant, is very weak and liable to much criticism, and yet we are constrained to think, as we did before, that it was proper for submission to the jury.

There was evidence tending to show that no bell was rung or whistle blown upon the engine attached to the train in approaching this crossing, and the court charged the jury that the defendant was not absolutely bound to ring a bell or to blow a whistle, but that it was bound to give such notice or warning of the approaching train as was reasonable and proper under the circumstances; that it was bound to give by bell, whistle or otherwise such reasonable notice as the jury should. find the circumstances required. The charge as thus made was excepted to on the part of the defendant, and its counsel requested the court to charge that if the bell was rung, as testified to by defendant's witnesses, that was a sufficient warning of the approach of the train, and that the defendant was not bound to give any other notice or warning. The judge refused so to charge, and the defendant's counsel excepted. In these rulings there was no error. The defendant was backing its train toward this crossing, which was extensively and notoriously used by the public, and it was bound to use reasonable and ordinary care so as not to endanger those who might be lawfully upon its track at that crossing. And what care and precautions, if any, besides ringing the bell, it

should have taken upon a train thus backing, were properly left for the jury to determine; and so it was held in the Barry Case. There, as here, there was a dispute as to whether the bell was rung or the whistle blown as a warning for the approach of the train. There the court charged the jury that in running its cars the defendant was obliged to give such notice and warning as in their judgment would be required as reasonable and proper and calculated fairly to protect the lives of persons using the crossing; that they were to determine whether in backing the train it observed that care and caution which was called for under the circumstances; and that it had a right to back the train, but, under the circumstances of the case, the question was whether it had the right to back it without giving warning in some way to the intestate. The defendant's counsel then requested the judge to charge the jury that if the bell was rung, the defendant was not bound to give any other warning, and in reply to the request the judge said that he left it for the jury to determine whether, under the circumstances, the ringing of the bell would have been such a warning as was requisite. This court held that there was no error in the charge as made or the refusal to charge. Judge Andrews, in his opinion, said: "We think it cannot be held as matter of law, under the circumstances of this case, that the ringing of the bell fulfilled the whole duty resting upon the defendant."

We find no error in the record, and the judgment should be affirmed with costs.

All concur.

Judgment affirmed.

CHAPTER XIII.

SPECIAL RELATIONS OF CONTRACT AND TORT. SECTION 2. DOUBLE RIGHT OF ACTION.

SHAW v. COFFIN.

(58 Me. 254.-1870.)

D. D. Stewart for the plaintiff.

William Folsom for the defendant.

APPLETON, Ch. J. The defendant, while a minor, having stolen money and other property of the intestate, which he converted into money, settled with him for the sums thus tortiously obtained, by giving his promissory note therefor.

This action is for the moneys stolen, and for the note given. on settlement of the same.

The note given by the defendant, when a minor, has not been ratified. The note of an infant, given on the adjustment of an account against him, is voidable. It is equally voidable, though given on a settlement for damages arising from his torts. The defendant, having avoided his note by the plea of infancy, the plaintiff is remitted to his original cause of action, as existing before the settlement by the defendant.

It is well settled that an infant is liable in the appropriate form of action for his torts. He would, therefore, be held in an action of trover for money stolen.

Is an infant liable on assumpsit for money stolen, or for the proceeds of stolen property when converted into money? The thief of full age is so liable. The owner of property stolen, and converted into money by the thief, may obtain assumpsit against him for money had and received. (Howe v. Clancey,