70 N.Y. 171, Besel v. New York Cent. & H.R.R. Co.

Citation:70 N.Y. 171
Party Name:MARY BESEL, Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
Case Date:June 12, 1877
Court:New York Court of Appeals
 
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70 N.Y. 171

MARY BESEL, Administratrix, etc., Respondent,

v.

THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

New York Court of Appeal

June 12, 1877

Argued Jun. 5, 1877.

Page 172

COUNSEL

A. P. Laning, for the appellant. Plaintiff having failed to show any personal negligence on the part of defendant, the motion for a nonsuit should have been granted. ( Ross v. N.Y. C. & H. R. R. R. Co., Gen. T. 4th Dept., 1875; Clarke v. Holmes, 7 H. & N., 937; Seymour v. Maddox, 16 Ad. & El., 327; Hayden v. S. Mfg. Co., 29 Conn., 548; Assop v. Yates, 2 H. & N., 768; Priestly v. Fowler, 3 M. & W., 1; Williams v. Clough, 3 H. & N., 258; Laning v. N.Y. C. R. R. Co., 49 N.Y. 521; Malone v. Hathaway, 1 T. & C., 1.) Defendant was not liable for the negligence of the yard-master or head brakeman. ( Flike v. B. & A. R. R. Co., 53 N.Y. 549; 13 Alb. L. J., 174; Rose v. B. & A. R. R. Co., 58 N.Y. 217.)

J. H. Martindale, for the respondent. Defendant was negligent in failing to use proper means to protect the deceased. ( Laning v. N.Y. C. R. R. Co., 49 N.Y. 521; Flike v. B. & A. R. R. Co., 53 Id., 553-555.)

MILLER, J.

The plaintiff's intestate was a car repairer in the employment of the defendant at their freight depot at Suspension Bridge, and the injuries which caused his death were received while engaged in that capacity in the freight yard of the defendant. When the cars came in on the road in conformity with the usual practice, they were placed on a track known as the repair track for inspection, and there examined, and if proved to be out of repair were put in order. This was done on the track, unless the defect was of such a nature as to render it necessary to send the cars to the

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car shop. The cars as soon as repaired were taken away from the track where they stood by an engine which was attached and then distributed upon the different tracks, some twelve in all, as required. The deceased was under a car, which was at the extreme western end of some forty-nine cars, engaged in the performance of his duty, and while there, an engine attached to the eastern end of the train started to draw off such of the cars as had been repaired, which were disconnected from the remainder, and one of which latter cars the deceased was engaged in repairing. When about three car lengths from the standing portion of the train, a section consisting of several cars parted by the breaking of a coupling pin, and the grade being descending the cars ran back against the standing cars causing them to move about half the length of a car, and deceased was run over receiving injuries from which he died the following day.

Recent adjudications in this State have gone very far toward settling the law as to the liability of railroad corporations for injuries occasioned to employees engaged in the service of these corporations, occasioned by the negligence of their fellow servants. The duty and implied contract of the corporation with its servants is, that it will furnish proper machinery or other materials and appliances necessary for the work to be performed, and shall employ competent and skilful fellow servants, and shall use reasonable care to that end. This duty necessarily implies that a sufficient number of workmen shall be engaged, and that those occupying positions over others shall be qualified, competent and skilful, and see that their subordinates attend to and perform the duty devolving upon them. Where there is a general agent or superintendent having the management or control of any particular department or branch of the business, such agent or officer takes the place of the corporation, and any neglect or omission of duty in respect to his employees, is the act of the master for which...

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