Bailey v. Rome

• Decision Date: 03 October 1893
• Citation: 139 N.Y. 302,34 N.E. 918
• Court: New York Court of Appeals Court of Appeals
• Parties: BAILEY v. ROME, W. & O. R. CO.

139 N.Y. 302

34 N.E. 918

BAILEY

v.ROME, W. & O. R. CO.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from supreme court, general term, fourth department.

Action by William D. Bailey against the Rome, Watertown & Ogdensburg Railroad Company for personal injuries caused by defendant's negligence. From a judgment of the general term (14 N. Y. Supp. 944, mem.) affirming a judgment of nonsuit, plaintiff appeals. Reversed.

William E. Scripture and Oswald P. Backus, for appellant.

Beardsley & Beardsley, (Arthur M. Beardsley, of counsel,) for respondent.

ANDREWS, C. J.

The failure of the defendant to perform its duty to use reasonable care in the inspection of the brake, the defect in which caused the injury to the plaintiff, is the gravamen of the action. The plaintiff was nonsuited, on the ground that there was no evidence of negligence on the part of the defendant. We think the case should have been submitted to the jury. The evidence shows that the plaintiff was employed as brakeman on a freight train of the defendant running from Norwood to Rome. On the day of the accident, after the train had been made up at Norwood, ready to start, 5 flat cars loaded with railroad iron were placed in the train next to the engine, and the train, consisting of 30 cars, then proceeded to De Kalb Junction. The train, having been stopped at that station, was started again, with a view of placing it on a side track, moving upon a down grade. The plaintiff, in the performance of his duty, attempted to set the brake on the fourth flat car from the engine, and swayed upon the wheel in the usual manner, when the brake rod came out, and he was thrown from the car, and injured by the moving train. On examination after the injury it was found that the pin in the bottom of the brake rod, designed to hold the rod in place, was gone. There was no evidence how long this defective condition of the brake had existed. The plaintiff testified that the rod came out easily when he swayed upon it. The absence of the pin could not have been seen by one working the brake, but an inspection of the brake under the car would have disclosed its absence. It is claimed in behalf of the plaintiff that the evidence would have justified the jury in finding that the pin was out when the train left Norwood, and that the company sent out the car from that place in a defective condition, without inspection. Rule 99 of the company provides that conductors ‘will be personally responsible for examining the cars in their train at every convenient point, and especially at water stations, and, with the help of the men, must know that all cars are in safe condition, and no wheels or brakes broken.’ The duty of a railroad company to use reasonable care to protect their employes from injury while engaged upon its trains embraces...