Borden v. Delaware, L.&W.R. Co.

• Decision Date: 25 March 1892
• Citation: 30 N.E. 586,131 N.Y. 671
• Parties: BORDEN v. DELAWARE, L. & W. R. Co.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 671

30 N.E. 586

BORDEN

v.DELAWARE, L. & W. R. Co.

Court of Appeals of New York.

March 25, 1892.

Appeal from supreme court, general term, fourth department.

This was an action by Anna V. Borden, as administratrix, against the Delaware, Lackawanna & Western Railroad Company to recover damages for the negligent killing of plaintiff's husband. From a judgment of the general term, affirming a judgment upon nonsuit granted at circuit, plaintiff appeals. Affirmed.

M. V. B. McGraw, (S. M. Lindsley, of counsel,) for appellant.

E. Hurlburt, (William Kernan, of counsel,) for respondent.

GRAY, J.

We think that the motion for a nonsuit, at the conclusion of the evidence in this case, was properly granted. The most careful reading of the record reveals no fact upon which negligence in the defendant can be predicated with respect to its duty to the deceased. Everything relating to the cause and manner of the death of plaintiff's intestate is matter of pure speculation. Of course, the inference is warranted that he fell from the train and was run over; but no inference is deducible that the accident was aftributable to any neglect or to any ommission on the defendant's part with respect to that duty and care which the law requires of it. All that is positively known is the fact of the violent death of the intestate, and that is not enough to authorize an inference of defendant's negligence. Briefly stated, the facts were that the deceased was a fireman, and at the time was employed upon a locomotive attached to a freight train. The train was running from Binghamton to Utica, in the nighttime, and, at the station of Greene, took on a coal-car, attaching it next to the tender. Shortly after leaving that station, the train parted, between the tender and this car. The train, being coupled together, again proceeded on its way; but soon afterwards, the deceased being missed, it was stopped at the next station, and a search was made, which resulted in finding the dead body within the rails, at about the place where the train had become uncoupled. The evidence tended to show that the coal-car was out of repair, and in such wise as to cause it to jump up and down while in motion. When the train broke apart, it was found that the coupling-pin had worked itself out of the link, so as to cause the separation of the train at that point.

The claim of the appellant is that in the lurching forward of the engine and tender, as the consequence of the sudden...