Henson v. Lehigh Valley R. Co.

• Decision Date: 29 January 1909
• Citation: 87 N.E. 85,194 N.Y. 205
• Parties: HENSON v. LEHIGH VALLEY R. CO.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 205

87 N.E. 85

HENSON

v.LEHIGH VALLEY R. CO.

Court of Appeals of New York.

Jan. 29, 1909.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Eva Henson, as administratrix, etc., of William S. Henson, deceased, against the Lehigh Valley Railroad Company. From an order reversing, by a divided court (122 App. Div. 160,106 N. Y. Supp. 602), a judgment dismissing the complaint, defendant appeals. Reversed, and judgment of Trial Term affirmed.

The action was brought to recover damages sustained by the death of the plaintiff's intestate alleged to have been caused by the negligence of the defendant in the maintenance and operation of its road and cars. Although quite unsatisfactory at some points, we shall assume that there was evidence tending to establish the following facts: The intestate was a freight brakeman in the employ of defendant. One evening as he was riding in the line of his duty on top of a train of freight cars, one of the latter became derailed and tipped over on him and killed him. This happened as the train was going around a curve of about six degrees at a speed of from four to six miles an hour. The car which tipped over was a loaded one. After the accident it was found lying on its side diagonally across the track detached from the car both in front and in the rear of it with its top turned towards the engine and its trucks derailed. Car wheel marks were found on the ties for a distance of about 170 feet back from where the car lay, and at that distance a mark or cut was found on the right-hand rail (looking towards the engine) indicating that a car wheel had run across the rail at this point. This mark and the marks on the ties showed that the wheels left the track towards the right increasing their divergence as they moved along. Near this point of the commencement of the wheel marks there was a space at the joint of two rails five-eighths of an inch in width which was from one-eighth to one-quarter of an inch more than the ordinary space. Within this distance of 170 feet there were two or three ties of which the ends on one side of the track were not close up against the rails, and a few ties which showed signs of superficial wear and decay; also, some appearance of quicksand in the track ballast. The end of the car next in the rear of the one mentioned also was derailed by the accident. The wreckage was taken to defendant's yard at Sayre, and subsequently two trucks, somewhat identified as those belonging to the overturned car, were examined. In the case of one of them it was found that a column bolt was missing, and also that the nut at one end of one of the trusses designed to support the bolster was wanting, and that the truss had receded from its proper position by several inches; the thread where the nut was missing being worn and rusted. The column bolt and this truss rod were each part of the construction designed to support and distribute the weight of the superstructure of the car, and the absence of the column bolt and the defective condition of the truss road tended to weaken this construction and allow the weight of the car to break down the bolster and settle down on the side gearing of the truck, and thus prevent the latter from turning readily on a curve, and, on the other hand, make the wheels of the truck liable to ‘jump’ the rails. The bolster was found broken after the accident. There was nothing to indicate how long the column bolt had been missing.

Lyman M. Bass and Daniel J. Kenefick, for appellant.

W. Smith O'Brien, for respondent.

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

A decision in this case is not free from difficulties whichever way it goes. The Appellate Division in reversing the judgment of nonsuit held that the plaintiff had failed to establish her allegations of negligence with one exception. We think that this decision was clearly right in so far as it held that no sufficient connection had been shown between the accident and various alleged defects in defendant's track and car. It would not only be speculation, but speculation in the face of opposing evidence, to hold that the space between two of the rails or the alleged defects in the ties or ballast caused the car which killed intestate to leave the track. While a jury probably might be permitted to say that the absence of a column bolt tended to impair the construction of a loaded freight car so as to increase the chances of its wheels leaving the track on a curve, there was no evidence from which it might be permitted to say that the column bolt missing from the truck examined in the Sayre yard, assuming that that truck belonged to the freight car in question, had been gone for such a length of time or under such circumstances as to make the defendant guilty of negligence. Very possibly it became displaced in the wreck, but, at any rate, mere proof that it was missing after the accident did not charge defendant with negligence for not having prevented or discovered its absence.

By her evidence in regard to the defective truss rod of the bolster, the plaintiff came nearer establishing a case for the consideration of the jury. The evidence that the trucks found at Sayre were those which had been under the derailed freight car was far from satisfactory, at least in regard to one of them; but we shall assume that a jury could have said that they were the trucks. The evidence fairly establishes that the defective condition of the truss rod would tend to let the weight of a loaded car down on the bolster and break the latter, as it was found broken, and then let the weight...