Harrison v. New York Cent. & H.R.R. Co.

• Decision Date: 16 March 1909
• Citation: 195 N.Y. 86,87 N.E. 802
• Court: New York Court of Appeals Court of Appeals
• Parties: HARRISON v. NEW YORK CENT. & H. R. R. CO.

195 N.Y. 86

87 N.E. 802

HARRISON

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

March 16, 1909.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Margaret Harrison, as administratrix of Edward Kirby, deceased, against the New York Central & Hudson River Railroad Company. From an order of the Appellate Division (127 App. Div. 804,111 N. Y. Supp. 812) reversing an order of the Trial Term setting aside a verdict for plaintiff and directing a nonsuit and directing a judgment on the verdict, defendant appeals. Order modified so as to direct a new trial, and affirmed as modified.

Le Roy B. Williams, for appellant.

Frank J. Clegg, for respondent.

CULLEN, C. J.

The action is brought by the administratrix of a servant against master for negligence causing death. It was claimed that the deceased, a freight brakeman on the defendant's road, was struck by a bridge which passed over the road, hurled from the train, and killed. Evidence was given to the effect that at the time of the accident the telltales required by the statute to give warning of approach to the bridge were defective, and no question is made on this appeal that the defendant's negligence was not a question of fact for the jury. The accident happened in the afternoon of a clear summer's day. No one saw its actual occurrence. The deceased was last seen by the conductor of the train at a station four miles west of the bridge getting on top of the fifth or sixth car back from the locomotive, which was his proper station as head brakeman. The track was straight at this point for some three miles, and the bridge could be easily seen at quite a distance. It appears, however, that the grade of the road descended in the direction in which the train was moving, and that on such grade the steam was shut off, the effect of which was to cause the smoke to hang around the train instead of being carried away. A short time after the train had passed, a boy discovered the body of the deceased lying under the bridge beside the track. His skull had been crushed at the back of his head, and there were marks on the side of the bridge as if it been recently struck by some object. From the place where the body was found and the nature of the injuries upon it, the jury was authorized to infer that the deceased had been struck by the bridge.

It is insisted, however, by the defendant, that the evidence was insufficient to justify the jury in finding that the deceased was free from contributory negligence. We think this was also a question of fact for the jury. The deceased having been killed, less evidence was required from his personal representative to establish his freedom from negligence than would have been required from him had he survived and been able to testify. Schafer v. Mayor, etc., of N. Y., 154 N. Y. 466, 48 N. E. 749. There is a plain distinction between this case and that of Wieland v. D. & H. Canal Co., 167 N. Y. 19, 60 N. E. 234,82 Am. St. Rep. 707, where the deceased, who was driving a vehicle along the highway, was killed at a railroad crossing. Ordinarily, where a traveler seeks to cross a railroad, his dominant thought should be to see that he can proceed across safely, that there are no approaching trains, and to this care all other considerations should be subordinated. It is not so, however, with a brakeman who is required to ride on the top of the cars while the train is moving. Doubtless, even in that position he must exercise reasonable care to avoid danger; but, as shown by the evidence, he has duties in that position which prevent him from giving that exclusive care to his own safety which is required from the traveler on the highway. He must be on the alert to receive signals from the conductor and to some extent look after the movement of the train. We are of the opinion therefore that the nonsuit granted at the Trial Term was improper, and that the order of the Appellate Division reversing it was correct.

We think, however, that there were errors committed at the trial that justified that court in setting aside the...