Ford v. Lake Shore & M.S. Ry. Co.

• Decision Date: 17 March 1891
• Parties: FORD v. LAKE SHORE & M. S. RY. CO.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 493

26 N.E. 1101

FORD

v.LAKE SHORE & M. S. RY. CO.

Court of Appeals of New York, Second Division.

March 17, 1891.

Appeal from a judgment of the general term of the superior court of Buffalo, entered upon an order dated December 31, 1890, affirming a judgment directed to be entered upon special findings of fact, and also affirming an order denying a motion for a new trial. This action was to recover damages for negligently causing the death of the plaintiff's husband, a switchman in the employ of the defendant. On the night of May 29, 1887, while at his post of duty, he was struck by heavy timbers, which fell from a passing car, and received injuries from which he soon after died. The case has been once before in this court, (117 N. Y. 638, 22 N. E. Rep. 946,) and the material facts are very fully stated in the opinion of Judge EARL there delivered. Other facts are stated in the opinion.

FOLLETT, C. J., dissenting.

James F. Gluck, for appellant.

Tracey C. Becker, for respondent.

BROWN, J., ( after stating the facts as above.)

Upon the first appeal of this case the judgment which the plaintiff had recovered was reversed by this court, on the ground that the cause of the accident was attributable solely to the negligence of the fellow-servants of the deceased in improperly loading the lumber upon the cars. There was then no question whether the defendant was guilty of negligence in failing to establish a proper rule or method for the loading of lumber. The court on the first trial charged the jury that there was no evidence that the defendant was called upon to establish any system of rules which should provide for any different or safer method in the loading of the lumber than that described by the witnesses, and, as the plaintiff had a verdict, no question was or could be raised on appeal as to the correctness of that charge. Upon the last trial it appeared that the only written rule that the defendant had established which it was claimed had reference to the loading of lumber was one known as No. 82, and which required its employes ‘to attend to the loading of all freight, whether loaded by station-men or by shippers, to see that it is safely stored, and so that it cannot fall off the cars.’ It appeared that the defendant had also furnished to its employes stakes to be used in making secure freight placed upon flat or gondola cars, and the witnesses for the defendant, who had loaded or inspected the cars in question, testified that they knew that stakes were necessary in making the lumber secure, and that when there were no brackets on the side of the cars, as in this case, the stakes could be placed inside the box, between the side of the car and the lumber, and fastened by being nailed or spiked to the side. But that course was not pursued in this case, for the reason that on account of the short distance the lumber was to be carried it was not deemed necessary. The plaintiff also gave proof tending to show that on other roads a verbal rule existed that in loading lumber it should be secured by stakes on the sides, and stays across the top of the load, whenever it was loaded above the side of a car, and that the rule applied in all cases, no matter what the distance was over which the lumber was to be carried; that no verbal rule of this character prevailed on defendant's road, and no instruction to that effect was ever given to its employes. This testimony was not given upon the first trial. At the close of the evidence the trial court submitted eight special questions to the jury, stating that upon the answers to those questions it would determine which party would be entitled to judgment. Upon the special findings thus made judgment was directed for the plaintiff. This mode of submitting the case to the jury was acquiesced in by both parties, but the defendant claimed, and now claims, that there was not evidence sufficient to justify a verdict for the plaintiff, and that the complaint should have been dismissed, and by appropriate exceptions the question is presented here whether the findings of the...