Durkee v. Hudson Valley Ry. Co.

• Decision Date: 15 December 1908
• Parties: DURKEE v. HUDSON VALLEY RY. CO.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 555

86 N.E. 537

DURKEE

v.HUDSON VALLEY RY. CO.

Court of Appeals of New York.

Dec. 15, 1908.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Zadie E. Durkee, as administratrix, against the Hudson valley Railway Company. From a judgment of the Appellate Division, affirming by a divided court a judgment for plaintiff, defendant appeals. Reversed.

For prior report, see 122 App. Div. 278,106 N. Y. Supp. 735.

Lewis E. Carr, for appellant.

J. A. Kellogg, for respondent.

WILLARD BARTLETT, J.

This is a suit under the Employers' Liability Act (Laws 1902, p. 1748, c. 600), in which the plaintiff has recovered damages against the defendant corporation for having negligently caused the death of her intestate, a motorman in its employ, who was killed in a collision between two of the defendant's electric trolley cars on the line between the villages of Sandy Hill and Ft. Edward on the night of July 2, 1905. Oscar Durkee, the plaintiff's intestate, was operating a southbound car. The main line is a single track. There is a switch at Baker's Falls, at which point, when he arrived there, he should have met and passed a car from Troy bound north. Durkee waited at this switch 10 minutes for the Troy car, as was his duty, and then proceeded, having under the rules of the company the right of way to the next switch, known as the ‘Fair Ground switch,’ distant 1,800 or 2,000 feet, or about two minutes in running time. Here the Troy car ought to have awaited his arrival on the siding; but, instead of so doing, it ran out upon the main track north of the siding, so that when Durkee's car came along it collided with the Troy car, and caused the injuries to Durkee which resulted in his death. The front platform of the Troy car was higher than the front platform of Durkee's car. When the collision occurred the higher platform passed over the lower platform on which Durkee was standing, and the main structures of the two cars thus came together crushing Durkee between them.

Assuming that the plaintiff's intestate himself was in no wise at fault, it is manifest that his death was wholly attributable to the negligence of his fellow servants who were operating the Troy car, unless it was also due to negligence on the part of the defendant corporation in failing to provide cars so constructed that, in the event of a collision such as occurred on this occasion, the platform of one of the colliding cars could not pass over the platform of the other. The learned judge before whom the case was tried recognized this as the sole test of liability. Throughout the trial witnesses, counsel, and the court used the term ‘bumpers' to characterize the extension of the floor of the car at either end which constitutes the platform; but there is no doubt what they were talking about. Such constructions are not bumpers in the sense in which that term is applied to freight and passenger cars operated in trains on steam railroad lines. The so-called bumpers in this case, as one of the principal witnesses for the plaintiff testified, ‘constitute the floor and the end of the floor under the vestibule and in the car.’ Referring to the bumpers, as thus defined, the trial judge instructed the jury as follows: ‘It is not claimed that the bumpers were defective, or that the cars were defective in the sense that they were inadequate, or in the sense that anything was broken about them. The charge is that in the construction of the bumpers one was built higher than the other, and that the company ought not to have allowed cars with bumpers so constructed to be used.’ He then...