Williams v. Delaware

Decision Date10 December 1889
Citation22 N.E. 1117,116 N.Y. 628
PartiesWILLIAMS v. DELAWARE, L. & W. R. CO.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

Action by Ellis R. Williams against the Delaware, Lackawanna & Western Railroad Company. The circuit court denied defendant's motion for a nonsuit, and rendered judgment for plaintiff upon the verdict, and the general term affirmed the judgment. Defendant appeals.

POTTER and VANN, JJ., dissenting.

Francis Kernan, for appellant.

W. T. Dunmore, for respondent.

HAIGHT, J.

This action was brought to recover damages for a personal injury. On the 8th of July, 1882, the plaintiff was engaged as a brakeman upon one of the defendant's trains, composed of freight-cars, and one passenger coach, which was at the rear end of the train. At the time of the injury he was standing on top of one of the box-cars composing the train, and, as the train passed under the Mitchell-Street bridge, in the village of Norwich, the back of his head struck against the bridge, inflicting the injury complained of. There was a side or branch track, parallel with the main track, passing through under the bridge where the accident occurred, which was entered from the main track at either end by means of switches. It was the custom of this train to run upon the side track, and stop, so as to allow the passenger train to pass. The plaintiff had gone upon the top of the train, so as to operate the brakes and hold the train in position after it had entered upon the branch track. He supposed that the engineer would enter the branch track at the first switch, and draw the train up upon it, but, instead of doing so, as he neared the switch he reopened the throttle of the engine, putting on more steam, so as to run through, upon the main track, to the other end of the branch, and then back in upon it. The plaintiff, seeing the engineer do this, and divining his purpose, turned to go back, towards the coach, and was thus proceeding, with his back to the bridge, when he was struck by the bridge, and injured. The height of the bridge from the top of the rail was 16 feet 1 1/2 inches. The height of the box-cars was from 11 feet 2 inches to 11 feet 6 inches. The height of the plaintiff was 5 feet 7 inches. Some of the cars used upon the defendant's road were lower and some higher than those of the defendant.

The only question which we shall consider in this case is as to whether or not the plaintiff was guilty of contributory negligence; and this depends upon the question as to whether he knew, or ought to have known, that this bridge was low, and that he could not pass under it while standing upon the top of the box-car. Upon this point, it appears from his own testimony that he first began work upon the defendant's road, in 1880, as a fireman on one of the engines, and for six or seven months had run over this road passing under the bridge daily. He had been laid off for a time, and had again entered the employ of the defendant as brakeman, and as such had run upon this train for upwards of three weeks when the accident occurred. His duty was that of middle brakeman, and he was required to be generally on top of the train, so as to hold the train if it was going on a down grade, or approaching a station, and to answer signals which should be received from the engineer. Upon his direct examination he testified that he did not know that the bridge was not of sufficient height to enable him to stand upon the top of a box-car, and pass under it in safety; that he did not think he had ever stood on top of box-cars and passed under the bridge; that he could not have done it. Upon his cross-examination he conceded that he knew of the bridge, and its...

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37 cases
  • Goure v. Storey
    • United States
    • Idaho Supreme Court
    • December 3, 1909
    ... ... 95 P. 682; Allen v. Lumber Co. (Or.), 96 P. 1109; ... Stephens v. Elliott, 36 Mont. 92, 92 P. 45; ... Burns v. Delaware etc. Co., 70 N.J.L. 745, 59 A ... 220, 592, 67 L. R. A. 956; Bird v. Utica etc. Co., 2 ... Cal.App. 674, 84 P. 256; Galveston H. & S. A. Ry. Co ... So. P. Ry. Co., 34 Ore. 256, 56 ... P. 129; 1 Labatt, Master and Servant, 591; Nugent v ... Elevated R. Co., 64 A.D. 341, 72 N.Y.S. 67; Williams ... v. Delaware etc. R. Co., 116 N.Y. 628, 22 N.E. 1117; ... Connors v. Morton, 160 Mass. 333, 35 N.E. 860; ... Feely v. Cordage Co., 161 Mass ... ...
  • Merrill v. Oregon Short Line R. Co.
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    • Utah Supreme Court
    • May 15, 1905
    ...v. Bradford, B. & K. R. R. Co., 136 Pa. 618, 20 Am. St. Rep. 944; Sweeney v. Berlin & Jones Envelope Co., 101 N.Y. 520; Williams v. D. L. & W. R. R. Co., 116 N.Y. 628; Unfried v. B. & O. R. R. Co., 34 W.Va. 260; 12 512; L. S. & M. R. R. Co. v. Knettal, 33 Ohio St. 468; L. & N. R. R. Co. v. ......
  • Lee v. St. Louis, M. & S. E. R. Co.
    • United States
    • Missouri Court of Appeals
    • May 2, 1905
    ...Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286; Williams v. Delaware, Lackawanna, etc., Railroad, 116 N. Y. 628, 22 N. E. 1117. Those not obvious assumed by the employé are such perils as exist after the master has used due care and p......
  • Lee v. St. Louis, Memphis & Southeastern Railroad Co.
    • United States
    • Missouri Court of Appeals
    • May 2, 1905
    ... ... inspection for defects and the repairs thereof." 20 Am. & Eng. Ency. Law (2 Ed.), 88; Williams v. Railway, ... 119 Mo. 316, 24 S.W. 782; Mathias v. Stockyards Co., ... 185 Mo. 434, 84 S.W. 66; Herdler v. Buck Stove & Range ... Co., 136 ... Berlin & Jones Envelope Co., 101 N.Y. 520, 5 N.E. 358; ... Hickey v. Taaffe, 105 N.Y. 26; 12 N.E. 286; ... Williams v. Delaware, Lackawanna, etc., Railroad, ... 116 N.Y. 628, 22 N.E. 1117.] Those not obvious assumed by the ... employee are such perils as exist after the ... ...
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