Dixon v. New York, O.&W. Ry. Co.

• Decision Date: 04 March 1910
• Citation: 91 N.E. 271,198 N.Y. 58
• Parties: DIXON v. NEW YORK, O. & W. RY. CO.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 58

91 N.E. 271

DIXON

v.NEW YORK, O. & W. RY. CO.

Court of Appeals of New York.

March 4, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Kate Dixon, administratrix, etc., against the New York, Ontario & Western Railway Company. From a judgment of the Appellate Division (132 App. Div. 944,117 N. Y. Supp. 1132), affirming by a divided court a judgment for plaintiff, defendant appeals. Reversed.

P. W. Cullinan, for appellant.

C. N. Bulger, for respondent.

HISCOCK, J.

While respondent's intestate was in the employ of appellant, on December 25, 1906, as the conductor of a yard or switching crew and engaged in the line of his duties, he fell through some open tracks into an underlying subway and received injuries which resulted in his death. This action was brought under the common law, and thus far has been successfully maintained on the theory that the appellant was guilty of negligence in not furnishing the intestate with a proper place in which to do his work. Whatever may be judged concerning the omissions of the appellant, we are of the opinion that the intestate assumed all of the risks which resulted in his unfortunate accident, and that, therefore, his administratrix cannot recover.

In the city of Oswego, at and for some time prior to the date of the accident, there were five parallel railroad tracks running through Schuyler street practically on an east and west line and crossing at right angles another street known as ‘Seventh street.’ Of these tracks all except the middle one belonged to the appellant and of these four tracks all except one seem to have been used for yard or switching purposes. The southerly track on which the accident happened was known as the ‘exchange track,’ and was used by the appellant in commonwith one or more other railroad companies for the purpose of distributing cars which had been brought into Oswego and which were to pass from one road to another. For several weeks before the date of the accident the appellant had been engaged in constructing a subway between 25 and 30 feet in width on the line of Seventh street beneath these tracks, and during this work the latter had been left in the form of open-work construction with spaces between the ties and still larger ones between the tracks. The only exception to this was that the workmen engaged in constructing the subway laid planks across the subway on the ties of the tracks and on stringers placed between the tracks for the purpose of obtaining a passageway from one side of the subway to the other in the course of their work. This arrangement of ways continually changed to suit the convenience of the workmen, and at the time of the accident there appears to have been only a line of single planks extending across the subway north of the north rail of the exchange track.

The intestate had been at work for appellant during all of the time this construction was going on, and, while his employment during a portion of this time did not lead him constantly into the neighborhood of the subway, still he was over and around the latter with sufficient frequency down to the time of the accident so that he must be charged with knowledge of the general situation at that point. On the morning of the accident he had gone, with the engine subject to his orders, to a point east of the subway, and between 10 and 11 o'clock in the forenoon, which was bright and pleasant, he received orders to move some cars standing on the exchange track. The engine and one or more cars attached thereto moved westerly on the exchange track towards the subway, but when some distance therefrom came to a stop and remained stationary and subject to the orders of the intestate, while he proceeded westerly for the purpose of adjusting the ‘knuckle’ of the easterly car so as to permit a coupling to be made. On the evidence most favorable to the respondent, the easterly end of the car to be coupled projected some distancebeyond the westerly edge of the subway. While intestate was engaged in, or just as he had completed, adjusting the knuckle, in some manner he fell through the tracks and was injured. The witness whose evidence is quoted by respondent as giving the most reliable account of what happened testified: ‘Dixon was...