103 N.Y. 626, Martin v. New York, N.H. & H.R. Co.

Citation:103 N.Y. 626
Party Name:MICHAEL MARTIN, General Guardian, etc., Respondent, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.
Case Date:December 17, 1886
Court:New York Court of Appeals
 
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Page 626

103 N.Y. 626

MICHAEL MARTIN, General Guardian, etc., Respondent,

v.

THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

New York Court of Appeal

December 17, 1886

Argued December 6, 1886.

COUNSEL

Page 627

Frank Loomis for appellant. The court erred in admitting evidence of what Quigley said after the accident, describing how the accident happened. (Waldele v. N.Y. C. & H. R. R. R. Co., 95 N.Y. 274; People v. Murphy, 101 id. 126; 1 Whart. on Ev., § 1174; Bigley v. Williams, 80 Penn. St. 107; People v. Davis, 56 N.Y. 283; Molloy v. N.Y. C. & H. R. R. R. Co., 10 Daly, 453.) The master does not owe to his servants the duty to furnish the best known or conceivable appliances; he is simply required to furnish such as are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances. (Burke v. Witherbee, 98 N.Y. 562.) The court erred in admitting the opinion of the witness, as to the better protection by a horizontal handle. (Ferguson v. Hubbell, 97 N.Y. 507.) Where upon the trial of an action the testimony of a party is wholly inconsistent with a written statement previously made by him under oath out of court, a verdict in his favor, unsupported except by such discredited testimony, should not be permitted to stand. (Molloy v. N.Y. C. & H. R. R. R. Co., 10 Daly, 453; 2 Phillips on Ev. [ 4th Am. ed.] 976.) An employe of a railroad company takes the risk incident to the character of the company's equipment or its method of doing business, even if less suitable than they might be, provided the employe knows, or has the means of knowing such character and methods, and voluntarily continues in the service. (Brick v. Rochester, N.Y. & P. R. R. Co., 98 N.Y. 211; Powers v. N.Y. L. E. & W. R. R. Co., id. 274; Gibson v. Erie R. Co., 63 id. 449; Mehan v. S. B. & N.Y. R. R. Co., 73 id. 585; DeForrest v. Jewett, 88 id. 264; Marsh v. Chickering, 101 id. 396; Sweeny v. Berlin & J. Envelope Co., id. 520.) Defendant could not then be liable unless knowledge of the disappearance of the handle was brought home to it, or proof given of the omission to exercise proper care to discover its absence. (Devlin v. Smith, 89 N.Y. 490.) There was no negligence on the part of the defendant in not having this particular car at this particular time equipped with the horizontal grab. (Marsh v.

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