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

• Citation: 45 N.E. 1028,151 N.Y. 579
• Court: New York Court of Appeals
• Decision Date: 02 February 1897
• Parties: DOING v. NEW YORK, O. & W. RY. CO.

151 N.Y. 579

45 N.E. 1028

DOING

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

Court of Appeals of New York.

Feb. 2, 1897.

Appeal from supreme court, general term, Fourth department.

Action by Loren Doing, as administrator of Robert P. Hare, against the New York, Ontario & Western Railway Company, for negligently causing the death of plaintiff's intestate. A nonsuit granted by the circuit court was affirmed by the general term of the supreme court (26 N. Y. Supp. 405), and plaintiff appeals. Reversed.

Gray, J., dissenting.

George W. Ray, for appellant.

Howard D. Newton, for respondent.

O'BRIEN, J.

The plaintiff's intestate was killed on the 3d day of March, 1890, while at work in the defendant's repair shop, and it is claimed that his death was the result of negligence on the part of the defendant. At the trial, when the plaintiff's proofs were closed, the court, on motion of defendant's counsel, granted a nonsuit, and the complaint was dismissed, to which ruling the plaintiff excepted. The judgment cannot be sustained if, in any fair view of the case, there was any evidence for the consideration of the jury on the question of defendant's negligence. The proofs established, or tended to establish, the following facts: The deceased was at work repairing a crippled car in the repair shop, which occupied the whole of a building 50 feet wide and about 200 feet in length. Three tracks passed through the shop through doors which were kept closed, and there were no windows on the side where the tracks entered the building from the yard. These tracks ran from the shop out into the yard, and were connected with the main track and other tracks by switches. The three tracks were used for the purpose of moving crippled cars and material into and from the shop to the main and side tracks. The cars were moved by being kicked or shunted by means of force applied to them by engines some distance from the shop, and in that way propelled by the momentum into or near the shop doors, and controlled while in motion by the brakes. On the day that the deceased was killed, some of the men who worked in the yard or about the shops were moving cars on the tracks outside the shop for the purpose of collecting and moving scrap iron. There was a pile of this iron near one of the tracks, about 20 feet from the shop door, and the men wanted to load it upon a car. With this end in view, they placed a car already loaded with 24,000 pounds of scrap iron on one of these tracks at a point about 800 feet from the doors, and there kicked or shunted it towards the shop. The brakeman evidently saw that the force applied would send the car past the pile of iron where they intended to have it stop, and possibly through the doors, and he attempted to control the movement with the brake, but, for some reason, it did not work, and the car ran past the pile of iron, crashed through the doors, and killed the deceased, who was working inside under one of the crippled cars. He had no means of guarding against such a peril, as it was impossible for him to see the approaching car, even if the work at which he was employed would permit him to be on the lookout, since the doors were closed, and there were no windows.

The question is whether this was an accident, or the result of some neglect or breach of duty on the part of the defendant. A loaded car was driven through the door of a workshop filled with busy men, and one of them was killed. That the defendant's workmen, in attempting to move cars in this manner in the yard were engaged in a very dangerous, if not reckless, experiment, cannot well be denied. The danger of the experiment consisted in moving cars in such a way that no one could tell exactly when or where they would stop. If, upon the occasion in question, the force applied was so measured that the car would stop at the pile of scrap iron, the deceased would not have been killed; but if the force applied was sufficient to send it 20 feet further, and it could not be controlled by the brake, the danger to the men inside the shop was so obvious that the manner in which this part of the defendant's work was carried on may very well be characterized as reckless. We will assume, then, what cannot be questioned, that the workmen were doing the defendant's work in a dangerous and reckless manner. But these workmen were doing nothing but what, according to the testimony, they had been doing for years before. If the defendant permitted its employés to carry on its operations upon these three tracks outside the shop in such a manner as to endanger the lives of those inside, who could not protect themselves, it failed to discharge to the deceased the duty which the law imposed...