Opinion
March 7, 1906.
Martin A. Springsteed, for the appellant.
William P. Rudd, for the respondent.
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 at different stations. In that case Justice ALTON B. PARKER, at the Trial Term, submitted to the jury the 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 therefrom. 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. That 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 to 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 you 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.