Wazenski v. New York Cent. & H.R.R. Co.

• Decision Date: 21 February 1905
• Citation: 180 N.Y. 466,73 N.E. 229
• Court: New York Court of Appeals Court of Appeals
• Parties: WAZENSKI v. NEW YORK CENT. & H. R. R. CO.

180 N.Y. 466

73 N.E. 229

WAZENSKI

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

Feb. 21, 1905.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by William Wazenski against the New York Central & Hudson River Railroad Company. From a judgment of the Appellate Division (83 N. Y. Supp. 1118,86 App. Div. 629) overruling plaintiff's exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial, and directing judgment for defendant, plaintiff appeals. Reversed.

David N. Salisbury, for appellant.

Albert H. Harris, for respondent.

O'BRIEN, J.

This is an action to recover for personal injuries which the plaintiff received while in the defendant's employ by falling from a coal trestle. On the trial the plaintiff was nonsuited, and hence upon this review he is entitled to the most favorable view of the evidence that the case will warrant. All disputed questions of fact and all reasonable inferences to be deduced from the testimony must be resolved in his favor.

The plaintiff was a laborer unloading coal upon the trestle. The trestle extended east and west, and was 240 feet long, 25 feet high, 26 feet wide, and had 20 pockets for coal on each side, numbered from [180 N.Y. 468]1 to 20, commencing at the west. There were two railroad tracks on top, and inclined tracks to the west end, which gave access to cars from the ground. The pockets were opened under the tracks, so that coal could be emptied directly from the cars into them; and they extended out under the walk, which ran along on top of the trestle, outside of the tracks, on the north and south sides. These walks were 5 feet 7 inches in width, and were made of boards 8 or 10 inches in width, laid north and south. Along the outer edge of the walk was a railing 2 feet 8 1/2 inches high, made of scantling, the posts being 6 feet apart. It will be seen that the surface of the trestle was so constructed that the walks or floorings enabled the laborers working on it to walk around to various points as their duties required. The proof tended to show that the plaintiff was alighting upon the walk from a coal car, where he had been at work. In doing so, he backed down from the top of the car. Some distance from the floor, a step was attached to it, upon which his feet rested in the descent. He says that, after moving one foot from the step, he placed it on the solid floor or plank beneath, which was a part of the walk. He says, in substance, that in moving the other foot he found that it rested, not upon the floor, but upon something different, and not so firm; and this is supposed to mean that he stepped upon the crack or aperture in the plank. Just how the accident occurred, the testimony does not disclose with much clearness; but the jury could have found that, when one of his feet was moved from the step to the floor, it went into a hole or crack, that caused him to lose his balance and fall through the railing some 25 feet to the ground.

The plaintiff contends that the negligence of the master consisted in the failure of the latter to furnish him a reasonably safe place to work in. The only defect complained of was a crack or aperture in the walk at the point where he alighted from the car. It is undisputed that at this point...