Grant v. Pennsylvania & N.Y. Canal & R. Co.

• Decision Date: 24 May 1892
• Citation: 31 N.E. 220,133 N.Y. 657
• Parties: GRANT v. PENNSYLVANIA & N. Y. CANAL & R. CO.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 657

31 N.E. 220

GRANT

v.PENNSYLVANIA & N. Y. CANAL & R. CO.

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, fifth department.

Action by Peter Grant against the Pennsylvania & New York Canal & Railroad Company for personal injuries sustained while in defendant's employ. From a judgment of the general term, affirming a judgment entered on a verdict for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.

Taber & Brainard, for appellant.

William B. Wooden and Charles M. Baker, for respondent.

PER CURIAM.

The difficulty with the plaintiff's case is that it lacks proof that the injury was caused by any defective appliance. The case is barren of any evidence that the drawhead which broke was defective in such a manner as to involve liability to plaintiff on the part of the defendant. It may have broken on account of a latent defect in the iron, which no inspection would have reached. Whether it did or not we do not know, and there is no evidence upon the subject. No facts are shown from which the cause of the accident can be more than guessed at. There is food for speculation or wonder, but there is no evidence as to the cause. Regarding the alleged defect in the drawbar on the locomotive the evidence is very light that the small deviation from a straight line constituted a defect at all. It was but an inch or an inch and a half in three feet, and the only evidence on the subject on the part of the plaintiff showed there was no difficulty in coupling the drawbar to the drawhead of a car, excepting on a curve. After the accident, the cast iron head of the drawhead where the link goes, and to which a bolt is attached, was found broken, and lying in front of the engine, and attached to the drawbar thereof. These two facts constitute all the plaintiff's evidence as to the cause of the accident. We may speculate and wonder whether the accident was or was not caused by this alleged defect in the drawbar, and whether, by reason of this slight bend, it did not unduly press against the drawhead, and thus cause the fracture of the latter; but there is nothing in the case that would permit us to exchange our speculation or wonder for a belief formed upon the evidence. If the accident occurred by reason of a latent defect in the drawhead of the car, the defendant would not be liable in this case if it had employed competent persons to build the car, and exercised proper...