Berrigan v. New York, L.E.&W.R. Co.

• Decision Date: 12 February 1892
• Citation: 30 N.E. 57,131 N.Y. 582
• Parties: BERRIGAN v. NEW YORK, L. E. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 582

30 N.E. 57

BERRIGAN

v.NEW YORK, L. E. & W. R. CO.

Court of Appeals of New York.

Feb. 12, 1892.

Appeal from supreme court, general term, fifth department.

Action by John J. Berrigan, as administrator of Edward Berrigan, deceased, against the New York, Lake Erie & Western Railroad Company, for the death of plaintiff's intestate, caused by personal injuries. Defendant appeals from a judgment of the general term affirming a judgment for plaintiff, and an order denying a motion for a new trial. Reversed.

James H. Stevens, Jr., for appellant.

E. A. Nash, for respondent.

O'BRIEN, J.

On the 16th of October, 1886, the plaintiff's intestate, Edward Berrigan, while coupling cars in the defendant's yard, received an injury from which he subsequently died. He received the injury while making up a train in the defendant's yard at Corning, which was known as the ‘Rochester Way Freight,’ which ran from Corning to Rochester. He was the caboose brakeman, and that part of the train which consisted of the way-cars was made up upon what was called ‘Siding No. 2,’-one of several on the right of the main track going east,-and had been so made up for 12 or 15 years prior to the accident. The train, at this time of the year, was made up in the night. He was engaged in coupling the caboose to the way-car ahead of it. There were three loaded freight-cars standing on siding No. 2, east of the caboose, and the brakes upon two of them were set. A freight-train came in from the west on the main track, and stopped at the station. The engineer of that train took his locomotive on to the east end of the siding, and with the assistance of a brakeman backed down the siding for the purpose of taking out these loaded cars. In making the coupling the tender of his locomotive struck these loaded cars with such force as to drive them back against the caboose, and throw that against the cars ahead, between which and the caboose the deceased was engaged putting in the link for the purpose of making the coupling. It is not claimed by the plaintiff that there was any neglect on the part of the defendant to furnish the deceased with suitable and safe machinery and appliances, or competent and skillful co-workers. The only neglect which the learned counsel for the plaintiff imputes to the defendant is that it failed to make and promulgate suitable and sufficient rules and regulations for the government of its employes while coupling the cars of this train upon the siding in question. The only suggestion made by him as to further precaution in this respect by the defendant is that the rule of the company which prescribes a red flag by day and a red light by night upon a crippled or disabled car, to indicate that it is not to be moved or collided with for the reason that men engaged in repairing such a car may be under or about it in such a position as to be unable to save themselves if the car was moved, should have been extended to the cars on this siding when being coupled. In other word, the contention of the plaintiff's counsel is that the defendant should have formulated and put in operation a rule which would require a red light by night and a red flag by day to be exhibited from the east end of the caboose, or from the end of cars which are being coupled. Judging from the locality where this injury occurred it would seem that danger of collision from engines and moving cars on the siding was as much to be apprehended from the west as from the east, so that the requirements suggested would not be satisfied without exhibiting the danger signal from both ends of cars which were being coupled on this siding. It is easy enough, after an accident has occurred, to suggest how it might have been prevented. It does not appear that any accident occurred on this siding during the 15 years before...