McInerney v. President, Etc., of Delaware & H. Canal Co.

Citation45 N.E. 848,151 N.Y. 411
PartiesMcINERNEY v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.
Decision Date19 January 1897
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, Third department.

Action by John McInerney against the President, Managers, and Company of the Delaware & Hudson Canal Company, for personal injuries caused by defendant's negligence. From a judgment of the general term. Third department (31 N. Y. Supp. 1130), affirming a judgment in favor of defendant dismissing the complaint, at the close of the evidence, plaintiff appeals. Affirmed.

J. Newton Fiero, for appellant.

Lewis E. Carr, for respondent.

BARTLETT, J.

This is an action to recover damages for personal injuries. The plaintiff, at the time of his injury, October 31, 1890, was in the employ of James N. Willard, Jr., lumber dealer, in the city of Albany, who was the proprietor of a yard upon which stood a mill for the cutting and dressing of lumber, situated some distance from the railroad of the defendant. A switch had been constructed from the railroad premises to the lumber yard, entering at the north end, and extending its entire length parallel with the mill. A low platform was erected between the track and the mill, on which lumber was loaded and unloaded. It is an admitted fact that this track was the property of Willard, and built upon his land. When cars were standing in the yard for the purpose of loading or unloading, they were uncoupled and moved by hand as required, and it was customary to keep standing upon this track a number of box cars for the convenience of the business. When Willard desired to move any of these cars away, he sent word to the defendant company, and a switch engine, with its crew of men, would come to the yard for that purpose. It was customary for the engine to stop at the entrance of the yard, and the crew would send notice to Willard, or, in his absence, to his foreman, that they were ready to do his work, and they would await orders. This course of procedure was pursued on the morning of the accident. Willard was duly notified, and, under his direction, the engine entered upon the track in the yard, for the purpose of coupling the cars and drawing them out. It appears that plaintiff and a fellow workman were between two of the cars, engaged in moving one of them by hand, at the time the engine was backed down, and the cars were forced together. Plaintiff was caught between the bumpers, and severely injured. There is a conflict of evidence as to whether Willard, through his foreman, notified his various employés at work about and between the cars of the fact that the engine was about to back down. The plaintiff having been nonsuited, this disputed point must be deemed decided in his favor; and the single question is presented whether the defendant discharged its full duty in the premises, by notifying Willard, and proceeding with the work in the yard under his directions.

It was stated on the argument by the learned counsel for both parties that the precise question now presented has not been decided by this court. It seems to us quite clear, upon principle, that the defendant cannot be held liable on the admitted facts of this case, after giving to the plaintiff the benefit of every presumption to which he is entitled under the record as it stands. It may be conceded at the outset that the engineer and crew on the defendant's engine, while operating in the yard of Willard, rested under the general duty imposed upon all men to abstain from injuring another intentionally or carelessly. There is no evidence that any of the engine crew knew that plaintiff was at work between the cars which were forced together. The engine had coupled on several cars, and stopped; then backed up further, for other unconnected cars, when the accident happened. The speed of the engine was a...

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18 cases
  • Nolan v. Joplin Transfer & Storage Co.
    • United States
    • Missouri Court of Appeals
    • 25 Giugno 1947
    ... ... 132, 120 N.E. 350, 3 A. L. R. 1178; ... McInerney v. Delaware & H. Canal Co., 151 N.Y. 411, ... 45 N.E ... ...
  • Chandler v. Gloyd
    • United States
    • Missouri Supreme Court
    • 9 Marzo 1909
    ...App. 368; 20 Am. and Eng. Ency. Law, 178; Wyllie v. Palner, 19 L. R. A. 285; Shearman & Redfield on Negligence (4 Ed.), 269; McInerney v. Canal Co., 151 N.Y. 411; Railroad v. Keighron, 74 Pa. St. 316; Clapp v. Kemp, 122 Mass. 481; Atherton v. K. C., C. & C., 106 Mo.App. 591; Wood on Master ......
  • Nolan v. Joplin Trans. & Stor. Co.
    • United States
    • Missouri Court of Appeals
    • 25 Giugno 1947
    ...153 S.W. (2d) 67, bottom 69, 70-72, 136 A.L.R. 516; Scribner's Case, 231 Mass. 132, 120 N.E. 350, 3 A.L.R. 1178; McInerney v. Delaware & H. Canal Co., 151 N.Y. 411, 45 N.E. 848; 35 Am. Jur., Sec. 541, p. 970. The word "employee" means a person employed to labor, for pleasure or interest of ......
  • Malland v. Sims, 24363.
    • United States
    • Washington Supreme Court
    • 25 Luglio 1933
    ... ... Yandell, 123 Ark. 515, ... 185 S.W. 1096; McInerney v. President, etc., of Delaware ... & H. Canal Co., ... ...
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