Appel v. Buffalo

• Citation: 19 N.E. 93,111 N.Y. 550
• Parties: APPEL v. BUFFALO, N. Y. & P. R. CO.
• Decision Date: 11 December 1888
• Court: New York Court of Appeals

111 N.Y. 550

19 N.E. 93

APPEL

v.BUFFALO, N. Y. & P. R. CO.¹

Court of Appeals of New York.

December 11, 1888.

Appeal from supreme court, general term, Fifth department.

Mary Appel, as administratrix, etc., sued the Buffalo, New York & Philadelphia Railroad Company for damages for causing the death of her intestate. From an order of the general term refusing a new trial, and ordering judgment for plaintiff, defendant appeals.

John G. Milburn, for appellant.

H. J. Swift, for respondent.

PECKHAM, J.

The plaintiff's intestate had been a switchman for some years, and had been for quite a length of time in the employment of the defendant in and about the yard where the accident happened, and he was therefore acquainted with the means employed therein by the defendant to accomplish its necessary work. Part of the means was the ‘frog’ which was used to effect the transfer of a train from one track to another which crossed it. Its shape and purpose, and the fact that it was unblocked, must have been as familiar to the deceased as any other thing connected with the railroad. It is scarcely to be credited that a man employed as a switchman, and who discharged his duties in the midst of a large number of just such instruments, could possibly be ignorant of their shape, or of the fact that they were unblocked, or could fail to understand that there was a liability or chance to get one's foot caught in their converging rails, and to suffer some grievous accident therefrom. The court below, very properly, held that by his acceptance of the service, and his continuance therein, the deceased assumed the hazard incident to an obvious or known danger. But the court held, with some hesitation, that it might be submitted to the jury as a question of fact whether the deceased was charged with notice of the manner and difficulty of removing his foot when within these converging rails, and of the danger of the situation in which he might then be placed.

We feel quite sure that one who worked among these rails daily for months and years necessarily was familiar with their shape and general construction, and must have known of the difficulty of removing a foot caught in the space between the rails, and of the danger of the situation arising therefrom. We cannot believe that any one could thus work, and yet, while familiar with the frog, its purpose and use, and with its apparent form and condition, and that it was unblocked, (with all of which knowledge the...