Keenan v. New York, L.E.&W.R. Co.

• Decision Date: 26 February 1895
• Citation: 39 N.E. 711,145 N.Y. 190
• Parties: KEENAN v. NEW YORK, L. E. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 190

39 N.E. 711

KEENAN

v.NEW YORK, L. E. & W. R. CO.

Court of Appeals of New York.

Feb. 26, 1895.

Appeal from superior court of Buffalo, general term.

Action by John Keenan against the New York, Lake Erie & Western Railroad Company for personal injuries. Plaintiff died after verdict, and Bridget Keenan, his administratrix, was substituted. From a judgment of the general term (21 N. Y. Supp. 445) reversing a judgment in her favor, the administratrix appeals. Affirmed.

George W. Cothran, for appellant.

Adelbert Moot, for respondent.

BARTLETT, J.

The plaintiff's intestate, who was a car repairer, brought this action to recover damages for personal injuries received by him while working in defendant's repair yard in Buffalo. The jury rendered a verdict in his favor for $10,000, and the general term of the superior court of Buffalo reversed the judgment on questions of law, ordering a new trial; and the intestate's administratrix (he having died after verdict rendered) appeals to this court, giving the usual stipulation for judgment absolute in case of affirmance.

The facts in this case are simple, and will be assumed as stated by the intestate, for the purposes of this appeal. There were three tracks running east and west at the place in the repair yard where deceased was working on the day of the accident. The southerly track was No. 21; the middle track, No. 2; the north track, No. 8. It is undisputed that the only entrance to these tracks was from the east; that No. 21 and No. 2 were used exclusively for repairing cars, and No. 8 was known as the ‘cripple track,’ on which were placed cars needing repairs; that the repairing tracks were protected by flags when men were at work under the cars, but no such precaution was adopted on track No. 8, as no repairing was done there, and cars were shunted thereon at all hours of the day. The deceased testified: ‘I was working right next to track No. 8, and within a short distance, for three months, and saw cars on that track every day, and the way they did business there.’ From 550 to 900 men were employed in the repair yards, and one Robert Gunn was foreman in charge of the repairs of cars; O'Day was assistant foreman; and Getz was the man who distributed the various articles of hardware, such as bumper springs, braces, etc., to the men when at work. The men were divided up into small gangs, and one Tracy was foreman or gang boss of the gang in which the intestate worked. On the day of the accident the intestate and another man were at work repairing a car on track No. 2, and found they needed an eight-inch bumper spring. The intestate applied to Getz for the spring, and was informed that he did not have one. He then went to what was known as the ‘scrap pile,’ which contained second-hand material of all kinds, and failed to find the required article there. He then reported these facts to the gang boss, Tracy, who told him he had better go down to No. 8 track, and take one from a car there. In company with his fellow workman, intestate...