(233 N. Y. 31)

KEOGH v. SOUTH BUFFALO RY. CO.

(Court of Appeals of New York. Feb. 28, 1922.)

Master and servant 291 (13)-Instruction on cause of derailment held improperly refused.

at the place where they found the derailment occurred, their verdict must be for the defendant. This request was refused, and the defendant excepted.

Clearly, this was error. If the jury could only find a verdict for the plaintiff in case there were defects in the cars or a defect in the track, if as a matter of law there was In an action for the death of a conductor no defect in the cars, then, if they found injured in a derailment occurring while he was employed in interstate commerce, where the that the track was not defective wherever trial judge charged without objection that, if the derailment might have occurred, a verthere was no defect in the cars, tracks, road-dict in favor of the plaintiff would not be bed, or equipment, there could be no recovery, justified. and defined "equipment" as relating to details of the cars or of the tracks, and later charged that there was no evidence of negligence as to the condition of the cars, refusal of a further charge that, if the jury found there were no defects in the track where the derailment occurred, the verdict must be for defendant,

was error.

Pound, J., dissenting.

The judgment appealed from, therefore, must be reversed, and a new trial granted, with costs in all courts to abide the event.

POUND, J. (dissenting). Defendant's counsel asked the court

"to charge that if the jury find that there were no defects in the track at the place where they find the derailment occurred, their verdict must

Appeal from Supreme Court, Appellate be for the defendant no cause of action." Division, Fourth Department.

Action by Mary Keogh, as administratrix, etc., against the South Buffalo Railway ComFrom a judgment of the Appellate pany. Division affirming a judgment for plaintiff (194 App. Div. 950, 185 N. Y. Supp. 935), defendant appeals. Reversed.

He did not ask the court to charge squarely that

due to a defect in the track the plaintiff can"Unless the jury find that the derailment was

not recover."

The exception to the refusal to charge is See, also, 196 App. Div. 916, 187 N. Y. not fatal. On the whole charge, the quesSupp. 940. tion was fairly submitted. Counsel's request was argumentative. I dissent.

Evan Hollister, of Buffalo, for appellant.
Hamilton Ward, of Buffalo, for respond-

ent.

ANDREWS, J. Martin Keogh was a freight conductor, employed by the defendant in interstate commerce. While riding on some cars backing over a switch track a derailment occurred, and Keogh was killed. This action was brought to recover damages for his death, and resulted in a verdict for the plaintiff. The judgment entered on this verdict was unanimously affirmed by the Appellate Division.

In his charge to the jury the trial judge without objection stated that, if there was no defect or insufficiency in the cars of the defendant, or in its tracks, roadbed, or equipment, there could be no recovery. By the use of the word "equipment" he had reference to the details of the cars or of the tracks. Later he was asked to say, and did say, that there was no evidence in the case as to the condition of the cars from which the jury could find the defendant negligent. He thus eliminated any consideration of this source of complaint. There was left a possible defect in the track causing the accident. He was then asked to charge that, if the jury found that there were no defects in the track

HISCOCK, C. J., and HOGAN, MCLAUGH-
LIN, and CRANE, JJ., concur with AN-
DREWS, J.

POUND, J., reads dissenting memorandum.
CARDOZO, J., not voting.

Judgment reversed, etc.

(233 N. Y. 34)

HAYDEN v. NEW YORK RYS. CO. (Court of Appeals of New York. Feb. 28, 1922.)

1. Evidence 77(3)-No unfavorable inference from failure to call witness equally available to other party.

Failure of plaintiff to call as a. witness the driver of the taxicab in which plaintiff was a passenger when injured by collision of defendant's car was within the general rule that no inference may be drawn by a jury because a party fails to call as a witness one who is in a available to the other, and this though plainlegal sense a stranger to him and is equally tiff had taken his deposition, use of which was impossible because of his presence at the trial, known to both parties.

(134 N.E.)

2. Trial 211-Refusal of instruction in connection with one given erroneous as to inference from failure to call witness.

Refusal of plaintiff's requested instruction, in connection with instruction previously given at defendant's request, as to failure to call witness, held erroneous, as conveying the idea that the jury could assume that, if the driver of the taxicab in which plaintiff was a passenger when injured by defendant's collision therewith had been called as a witness, his testimony would have been unfavorable to plaintiff. Crane and Andrews, JJ., dissenting.

ences because of his failure to call this man as a witness.

The general rule is that no such inference may be drawn by a jury because a party fails to call as a witness one who is in a legal sense a stranger to him and is equally available to the other side. Jordan v. Austin, 161 Ala. 585, 50 South. 70; Cullum v. Colwell, 85 Conn. 459, 83 Atl. 695; State v. Fitzgerald, 68 Vt. 125, 34 Atl. 429; Wood v. Agostines, 72 Vt. 51, 47 Atl. 108; Briody v. The Persian Monarch (D. C.) 49 Fed. 669; The Oregon, 133 Fed. 609, 629, 68 C. C. A.

Appeal from Supreme Court, Appellate 603. We think plaintiff fairly came within Division, First Department.

Action by Frank Case Hayden against the New York Railways Company. From a judgment of the Appellate Division (192

App. Div. 950, 182 N. Y. Supp. 928) affirm ing a judgment on a verdict for defendant, plaintiff appeals. Reversed.

the terms and protection of this rule. As more relationship between him and the drivhas already been pointed out, there was no

er than there was between the driver and

the defendant. It is doubtless true that his application for leave to take the evidence of the man on deposition indicated a belief that his evidence would be material and help

Frank Case Hayden and Charles H. Tut-ful. The presence, however, of the proposed tle, both of New York City, for appellant.

P. Ingram Jones, and James L. Quackenbush, both of New York City, for respondent.

witness at the trial prohibited the use of this deposition, and we know as a matter of ordinary experience that there may be many reasons aside from unfavorable attitude which render it profitless to call one as a witness for the purpose of giving testimony which is essentially cumulative. But if we should assume that all of the other circumstances would have permitted an unfavorable inference as the result of a failure of the plaintiff to call this witness, we think that the significance of these circumstances was entirely offset and nullified by the failure of the defendant to call him. He was just

HISCOCK, C. J. Plaintiff brought this action to recover damages alleged to have been sustained as the result of a collision between a hired taxicab in which he was riding and one of defendant's cars. It is unnecessary to go into the details of the collision because no claim is made by defendant upon this appeal that there was not evidence entitling the plaintiff to go to the jury upon the questions respectively of defendant's negligence and his contributory negligence. as available to it as to the plaintiff. It was The only questions requiring our considera- | tion are those arising from the failure of the plaintiff to call the driver of the taxicab as one of his witnesses and the instructions of the trial court in connection with such failure.

not subject to the disadvantage of being compelled to call as a witness one whose knowledge and attitude were unknown to it while being known to the other side. His evidence which had been taken upon deposition fully advised defendant of what this man claimed and of the theory of the accident to which he had become anchored by his sworn testimony on the deposition. When knowing all this, it did not consider him to be so favorable to its side that it desired to call him, we do not well see how it could be inferred that he also would be so unfavorable to the other side that it did not desire to call him. The balance of his testimony could not well be unfavorable to both sides. The most that could be assumed would be that it was of such a character as to be of negligible value for either side.

[1] This driver was at no time in the employ of or under the control and influence of plaintiff. After the accident he called upon the latter at the hospital, and made a statement with reference to the collision, and thereafter employed some attorney on his recommendation. Subsequently plaintiff procured his evidence to be taken upon a deposition, and still later made a motion to suppress such deposition. Otherwise than by the subpoena or request of plaintiff he was present at the trial of the action with the knowledge of defendant. Each party swore various witnesses to sustain his or its ver[2] The next and remaining question is sion of the accident, but neither party called the one whether the court by its instructions him as a witness. Under these circumstanc- denied to plaintiff the benefit of the rule es the inquiry arises whether plaintiff's case which we have stated and permitted unfavorbecame subject to any unfavorable infer- | able inferences to be drawn against him be

cause he did not call this person. The trial, a serious handicap to the plaintiff's case justice in response to the request of plain- with the jury, and under the circumstances tiff's counsel originally charged in substance we think that it was an erroneous and unthat no duty was incumbent upon the plain- just one which calls for a reversal of the tiff to call the driver as a witness. There- judgment. Wood v. Agostines, 72 Vt. 51, 54, upon defendant's counsel made the request: 47 Atl. 108; Cross v. L. S. & M. S. Ry. Co., "I ask your honor to charge the jury that 69 Mich. 363, 37 N. W. 361, 13 Am. St. Rep. they may take into consideration their failure 399; Fonda v. St. Paul City Ry. Co., 71 to call him and say what they think." Minn. 438, 74 N. W. 166, 70 Am. St. Rep. 341.

-and the court charged:

"The law is that, if there is testimony which is favorable to either party, and the party in whose favor the testimony is, or liable to be, fails to call that witness, the jury may assume that had he been called his testimony would have been adverse."

No exception was taken to this charge, but plaintiff's counsel then requested the court "to charge the jury that there is no evidence in this case that the testimony of this witness would be unfavorable to plaintiff," and, the court having declined to make this charge, exception was duly taken.

HOGAN, CARDOZO, POUND, and McLAUGHLIN, JJ., concur.

CRANE and ANDREWS, JJ., dissent,

Judgments reversed, etc.

(233 N. Y. 39) CITY OF ROCHESTER v. ROCHESTER GAS & ELECTRIC CORPORATION et al.

(Court of Appeals of New York. Feb. 28, 1922.)

1. Gas 14(1)-Obligation to serve does not prevent service charge.

The fact that a gas company is bound to render service to the public does not require it to render such service gratuitously, and therefore does not prevent it from collecting a service charge, especially since Transportation Corporations Law, § 62, expressly permits it to assess on the householder the entire cost of in

stalling service pipes beyond the street line.
2. Gas 14(1)-Commission has jurisdiction
to permit service charge by gas company.

Under Public Service Commissions Law, § 65, subd. 1, relating to charges for gas, the Public Service Commission has the power to authorize a gas company to make a service charge of uniform amount against each of its patrons in addition to the charge for manufactured gas.

The charge made by the trial justice in response to the request of defendant's counsel, and which has been quoted, is so confusedly expressed that it is somewhat difficult to grasp its exact meaning. We are inclined to think, however, that the idea which the justice intended to convey to the jury was the one that if a party fails to call as a witness one who apparently would give favorable testimony if he could, the jury may assume that, if called, his testimony would have been adverse. Of course the meaning and application of this instruction in the present case was that the situation was such as between plaintiff and the taxicab driver that the jury might draw the inference that the evidence of the latter would have been unfavorable to the former if he had been called. While this charge passed without any exception, and, therefore, does not of itself present a basis for claim of error, it is of considerable materiality as bearing upon the A uniform service charge by a gas comfollowing refusal of the court to charge pany against all of its consumers regardless that there was no evidence in the case that of the quantity of gas used by them, to pay disthe testimony of the taxicab driver would tribution costs, which are not dependent on the have been unfavorable to the plaintiff. In- quantity of gas, is not unjust and unreasonable or unjustly discriminatory contrary to Public terpreted in the light of what he had just Service Commissions Law, § 65, subd. 2, even said, we think that the jury could not have though it does not achieve perfect equality, esunderstood his refusal as meaning otherwise pecially in view of the authority given a gas than that it could assume that if the driver corporation to establish classifications of servhad been called he would have given evi-ice under Public Service Commissions Law, § dence unfavorable to the plaintiff. Thus the 65, subd. 5, and section 66, subd. 14, as amended defendant secured the benefit as an addition- by Laws 1921, c. 134. al witness of one who knew intimately of the occurrence under investigation, and this in spite of the fact that, knowing what he would testify to, it had been unwilling to call him as its witness. This must have been

3. Gas 14(1)—Uniform service charge on all consumers is not discrimination.

4. Gas 14(1)-Varying charges in dissimilar service not prohibited.

Varying charges by gas company are not always prohibited, but only such charges for like services in substantially similar conditions.

5. Gas 14(1)-Whether service charge shall be permitted rests within Commission's discretion.

(134 N.E.)

Though the Public Service Commission may authorize a gas company to make a uniform service charge against all of its customers sufficient to cover its distribution costs, the Commission is not required to do so.

The fact that a gas company distributes the CARDOZO, J. The Rochester Gas & Eleccost of installing and repairing its meters equal-tric Corporation petitioned the Public Servly among all consumers, instead of charging each ice Commission for permission to increase consumer for the service rendered him, does the price of manufactured gas. The Com

company. The submission restricts the con- ed through the device of a minimum bill, troversy to three questions:

First. Did the Public Service Commission of the State of New York, Second District, have authority and jurisdiction to order or permit the service charge of 40 cents per consumer per month as provided in its orders of July 1, 1920, and October 14, 1920? Second. Is such service charge unjust and unreasonable or unjustly discriminatory, regardless of the amount thereof?

which differs from a service charge in this only, that the charge is absorbed and disappears when the minimum is reached. For the man who does not take anything, or less than the amount prescribed, the two devices are the same. Each is an expedient for maintaining the equilibrium between service and requital.

With this statement of the problem, the first subject of inquiry will be the jurisdicThird, Does such service charge constitute tion of the Commission. The argument is "rent on a gas meter" within the meaning made that jurisdiction is limited to prescribof section 66 of the Transportation Corpora-ing the charge for gas as distinguished from tions Law (Consol. Laws, c. 63), and is the the charge for service. We find no such limcharging and collection thereof consequently itation in the statute: barred by such section?

If these questions are answered in favor of the plaintiff, the stipulation is that an injunction is to issue. In view of this stipulation, we do not attempt to consider whether the remedy would be held appropriate if objection had been made to it. We pass directly to the merits.

"Every gas corporation" is required to "furnish and provide such service, instrumentalities and facilities as shall be safe and adequate and in all respects just and reasonable." Public Service Commissions Law, § 65, subd. 1; Consol. Laws, c. 48.

*

*

or

"All charges made or demanded by any such * for gas, * gas corporation, any service rendered or to be rendered, shall be just and reasonable and not more than allowed by law or by order of the Commission." Section 65, subd. 1.

"Every unjust or unreasonable charge made or demanded for gas, or any such service, or in connection therewith, or in excess of that allowed by law or by the order of the Commission is prohibited." Section 65, subd. 1.

The expenses of a gas company are incurred partly in manufacture and partly in distribution. Its income must be adequate to reimburse it for the one outlay as for the other. Expenses of manufacture may be apportioned among consumers in proportion to the quantity of gas consumed. Expenses of distribution in their division may follow other lines. Some remain constant whether consumers are few or many. Others increase or diminish at a uniform rate with the number of the patrons. A service charge is an attempt to make the incidence of the burden as wide as the incidence of the benefit. From all the items included in the cost of distribution it segregates, and divides per capita, those dependent upon numbers. Such items there always are. Whenever a building is connected with a main, there is expense which continues while the connection is maintained. This expense will be the same though only a trifling quantity of gas, or even none at all, is used by the householder requiring the connection. In the absence of a service charge, or some similar device, there is the benefit of facilities, which would otherwise be needless, without the burden of contributing to the cost of supplying or maintaining them. The householder who closes his dwelling for the summer, and pays nothing in the interval, shifts the cost of maintenance incurred in his behalf to the householder whose dwelling is open throughout the year. The occupant who consumes something, but not enough to pay his share of the [2] If there is a right to require payment expense, is carried by his neighbors when for installation, there must be a right to re rates are increased to compensate for profit- quire payment for repairs. If there is a less accounts. Sometimes this result is avoid-right to insist upon payment in a lump sum,

[1] We are told that the plaintiff, being a public service corporation, is bound to serve, and that, since it is bound to serve, it may not charge inactive accounts for maintaining facilities for service. The conclusion does not follow from the premise. The law imposes the duty to establish connections for the householder who demands them, but it does not impose the duty either to install or to maintain gratuitously. No one is under an obligation to permit connections to be made between his building and the mains. If he demands the facilities with the added expense that follows, he thereby invites a service, and must be numbered among those for whom service is maintained. The Legislature has nowhere said that benefit shall be divorced from burden. On the contrary, permission is expressly given to assess upon the householder the entire cost of installing serv ice pipes beyond the street line (Transp. Corp. Law, § 62; Consol. Laws, c. 63; Moore v. Champlain Electric Co., 88 App. Div. 289, 85 N. Y. Supp. 37), and to demand a deposit in advance sufficient to pay therefor.