Finnell v. Delaware

• Decision Date: 20 January 1892
• Citation: 29 N.E. 825,129 N.Y. 669
• Parties: FINNELL v. DELAWARE, L. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 669

29 N.E. 825

FINNELL

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

Court of Appeals of New York.

Jan. 20, 1892.

Appeal from supreme court, general term, fourth department.

Action by Michael J. Finnell against the Delaware, Lackawanna & Western Railroad Company, to recover for personal injuries. Defendant appeals from a judgment affirming a judgment entered on a verdict for plaintiff. Reversed.

Louis Marshall, for appellant.

Edmund O'Conner, for respondent.

EARL, J.

In September, 1888, the plaintiff was a brakeman in the service of the defendant, and, while attempting to couple a car to the tender of an engine upon a branch track, one of his feet was caught between two ties, and he was run over and very badly injured; and this action was brought to recover his damages. While this case appeals very strongly to our sympathies, we are unable to uphold this recovery. The plaintiff was an experienced brakeman, and was acquainted with the locality where the accident happened. The branch track was not constructed for the purpose of running trains of cars thereon, but for the purpose of storing cars and making up trains. It was not ballasted, like the main track, and at the place of the accident there were some ties between which there was no ballasting whatever. The condition of the track, however, was perfectly visible, as it was broad daylight at the time of the accident. The plaintiff was upon the tender of the engine as it backed from the main track upon the branch. He had entire control of the movements of the engine, and could order it to be stopped at any time by a motion of his hand to the engineer, and thus it was backing upon the branch track under his direction. As it backed for several hundred feet the condition of the track was plainly visible to him, standing upon the brake-beam at the rear of the tender. It backed at the rate of about two miles an hour,-about half as fast as a man would ordinarily walk. It became necessary for the plaintiff to draw an iron bolt, and take out the link which was in the draw-head of the tender, throw it over the hook which was in the draw-head of the car, and thereafter it was to be replaced in the draw-head of the tender, and there fastened by the bolt. At a short distance from the car, while the tender was thus being backed, he jumped off the tender into the middle of the track, and attempted to remove the link from the draw-head while he was slowly walking back between the tender and the car; and, as he was thus walking, he claims that his foot caught between two ties,-his toe partly under one, and his heel against the other.-and that it was thus fastened so that he could not withdraw it, and that the wheels of the tender passed over his legs. He claims that the defendant was negligent in not ballasting this branch track so as to make it safe for him to walk thereon, and to discharge his duty as brakeman while standing thereon. But we do not understand that railroad tracks are ballasted for the purpose of making them safe for brakemen to walk upon, but for the purpose of making them firm and safe for the passage of trains, and we do not think the defendant neglected any duty it owed the plaintiff in not ballasting the track...