Ford v. McAdoo
| Decision Date | 03 May 1921 |
| Citation | 231 N.Y. 155,131 N.E. 874 |
| Parties | FORD v. McADOO, Director General of Railroads. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Margaret H. Ford, as administratrix of the goods, chattels, and credits of Truman C. Ford, deceased, against William G. McAdoo, Director General of Railroads. From judgment of the Appellate Division affirming judgment of the Trial Term entered on verdict of a jury in favor of plaintiff (190 App. Div. 884,178 N. Y. Supp. 890), defendant appeals.
Judgments reversed, and complaint dismissed.
Appeal from Supreme Court, Appellate Division, Third Department.
Halsey Sayles, of Elmira, for appellant.
Mortimer L. Sullivan, of Elmira, for respondent.
The plaintiff in this case, as administratrix of the estate of Truman C. Ford, deceased, has recovered a verdict against the defendant representing the Delaware, Lackawanna & Western Railroad Company for damages caused by the killing of her husband on April 29, 1918.
Ford was in the employ of the railroad company as head brakeman on a freight train which left Buffalo for Elmira at 7 o'clock in the evening of that day. At about 3 a. m. in the morning, as the train was coming into Wallace, a signal from the caboose notified the engineer that an emergency had arisen requiring him to stop. The train consisted of 73 cars drawn by engine 1206.
Ford was sitting in his usual place on the left-hand side in the engine. It was he who told the engineer and fireman about the signal and to stop the train. As the train slowed down coming to a stop going not faster than 2 or 3 miles an hour it was approaching a bridge 65 feet in length. This bridge was a girder bridge supported by three girders; that is, the tracks ran between two girders which were 12 feet 1 inch apart. These girders were 5 feet 6 inches high. There was no floor to this bridge. Beams ran across from the center girder to the girders on the sides. From the girders there extended down slantwise 16 braces or gussets to which the beams were fastened. Under each rail there was an iron girder running lengthwise supported by these beams attached to the gussets. The ties were from 8 to 10 inches apart.
As trains entered upon the bridge they passed between these two upright girders. The gussets were wider at the bottom than at the top; that is, they came out near to the rail or ties at the bottom of the bridge. The distance between the sides of the train and the girder with the gussets was therefore very narrow, and narrowed to 7 inches at or near the bottom step of the engine. It was never intended that any one should step from a train to the bridge, as there was scarcely a place to stand. The distance from the side of the tender to the top of the girder was given as 16 1/2 inches. From the deck or floor of the engine three steps led to the ground. From the bottom step the distance, as stated, to the gussets was seven inches. The photographic exhibits clearly illustrate the place. It will thus be appreciated, if this description is understood, that a person stepping off the engine onto the bridge with the train in motion would be very apt to strike a passing gusset which came within 7 inches of the step. It would be almost impossible to escape injury.
This was the bridge which the train was approaching or crossing when the engineer slowed down in response to Ford's direction. When the train stopped it was about two car lengths from the further end of the bridge. The train was going from west to east, and the engine was therefore about two car lengths distant from the easterly end of the bridge.
After Ford had notified the engineer and fireman of the caboose signal, he took his lantern and proceeded to get off the engine. The train was then in motion, but where it was in reference to the bridge no one seems to know. When the train had stopped, Ford was found on the girders of the bridge alongside the train between the middle and easterly end. Both his legs had been cut off. He was hurried to the hospital and shortly thereafter died.
Back of the engine at the bottom of the tender was the water tank. At the left-hand corner of the tender on the outside was an opening leading into the water tank and above this was a hook upon which to hang a pail. A grabhandle was on the tender leading down from the deck of the engine. This hook in question was 23 1/2 inches back from the grabiron on the left-hand side of the tender and 8 inches from the bottom of the tank and tender. It was a little hook just large enough to take the wire handle of a pail. Its dimensions are given as extending up vertically 1 1/8 inches and sticking out from the side of the tank 1 1/4 inches. The hook bent upwards, not sideways. The hook did not come to a point, but was blunt like the end of one's finger. Above the rail the hook was 4 feet 9 inches.
After the accident there was found on this hook a small piece of blue cloth striped with white similar to the overalls worn by Ford.
The theory of the plaintiff was that Ford stepped off the engine before he reached the bridge, was caught by this hook, and dragged into the gussets of the bridge and thrown under the wheels of the car. This hook, it is said, was a dangerous contrivance rendering the engine and tender unsafe and improper within the meaning of the Boiler Inspection Act of Congress, as amended. Act Feb. 17, 1911, c. 103, § 2 (U. S. Comp. St. § 8631), amended by act March 4, 1915, c. 169, § 1 (section 8639a). This act makes it unlawful for any common carrier to use any locomotive engine unless the boiler and appurtenances thereof are in a proper condition and safe to operate. The amendment to the act makes it apply to the entire locomotive and tender and all parts and appurtenances thereof. The act also provides for an inspection by officials of the government in accordance with the provisions of the act.
The plaintiff recovered her verdict against the defendant upon the grounds before stated.
In my judgment there are two difficulties in the way of such a recovery:
First. There is no evidence to show how the accident happened and no evidence from which a reasonable inference may be drawn that the deceased stepped from the train before it reached the bridge.
Second. There is no evidence to show that the engine or tender were imperfect, unsafe, or improper within the meaning of this act of Congress.
[1] As to the first objection: A careful reading of the record discloses that no one knows where the train was when the deceased stepped from the engine. It had slowed down to 2 or 3 miles an hour and stopped after the engine had gone two car lengths over the farther end of the...
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