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

• Decision Date: 23 December 1887
• Citation: 107 N.Y. 566,14 N.E. 503
• Parties: LILLY v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 566

14 N.E. 503

LILLY

v.NEW YORK CENT. & H. R. R. CO.¹

Court of Appeals of New York.

December 23, 1887

Appeal from general term, supreme court, Second department.

This was an action brought by John Lilly against the New York Central & Hudson River Railroad Company to recover damages for personal injuries sustained by the plaintiff while at work as brakeman for the defendant. In the court below, a nonsuit was entered. The plaintiff appealed.

EARL and FINCH, JJ., dissenting.

John D. Taylor, (S. D. Morris, of counsel,) for appellant.

Frank Loomis, (B. F. Tracy, of counsel,) for respondent.

PECKHAM, J.

The plaintiff was run over by what is termed in the case an ash car on one of the tracks of defendant's road near the Grand Central depot in New York on the thirtieth of October, 1880, and the accident resulted in the loss of both his legs. He brought an action against defendant to recover the damages which he thus sustained, and upon the trial he was nonsuited, and the nonsuit, upon appeal, was sustained by the general term, and from the judgment of affirmance the plaintiff has appealed to this court. Upon the trial the plaintiff gave evidence tending to prove the following facts: He was a brakeman in the employment of the defendant, and was assigned to duty in and about the Grand Central depot, and the yards and grounds adjoining. Of the several tracks running north from that depot, at the place of the accident, it is only necessary to notice two, which are called the ‘Shore Line’ and the ‘Express' tracks; the shore line being the westerly, and the express being the next adjoining track on the east. Just before the happening of the accident, which occurred at about 7 o'clock in the evening, the plaintiff was on an engine which stood on the shore line a little above (north of) the Forty-Seventh street bridge, and in the yard of defendant. He was talking to the engineer and to one of his own fellow-workmen, when the foreman of his gang came up, and asked the engineer if he was coupled onto a car which stood in the rear of his engine. One of the men on the engine replied ‘Yes,’ when he was told to pull the pin, and come in on the express track, and (as the witness understood him) get the air car. The foreman was subsequently sworn, and says that he said to get the ash car. The difference is not important, only as showing that the order as to what car to get was not understood, and that the ash car was not then looked for. When the order was given, plaintiff and his fellow-workman got off the engine, the plaintiff pulled the pin out behind, and the engine started north to go on a switch which was 184 feet north of the Forty-Seventh street bridge, for the purpose of backing down on the express track to get the car spoken of. The plaintiff and his companion, Buckley, who was a car-coupler, then started south between the shore line and the express tracks, for the purpose of finding the car spoken of by the foreman. The engine, having been switched from the shore line to the express track, backed down on the latter track while the men were going south. They passed under the Forty-Seventh street bridge, and when just south of the bridge they came to a car on the express track; the north end of which car stood about four feet south of the north end of the bridge. The plaintiff was slightly in advance of his companion, and when they came upon this car they supposed it was the one that was to be moved. Buckley prepared to make the coupling. He removed the pin from the bumper on the north end of the car, and got ready to make the coupling, while the plaintiff went to the south end, and prepared to get upon it, for the purpose of attending to the brakes when the car was coupled to the engine. The car was loaded with ashes from a heap of ashes that had been collected by the side of the car. As Buckley prepared to attend to the coupling, he saw the engine coming back so rapidly that he could not make it, and had to jump out of the way to save himself. He had left his own lamp on the rear of the tank of the engine, for the purpose, as he said, of lighting the rear of the engine, so he could see to make the coupling as the engine moved down to the car. The plaintiff in the mean time had set his lamp down at the rear of the car, for the purpose of getting on it, and, as it had no step, he was obliged to take hold of the brake-rod, and put his foot on one of the bumpers, and in this way was obliged to use both his hands. He was in the act of swinging himself upon the car when it was struck by the engine, and the force of the collision knocked him off. He had hold of the brake-rod with both hands, and the force of the blow unloosed his hold, knocking him off the bumper and across the track. He called to the engineer to attract his attention, expecting that he might hit the car again. When he fell across the track, the brake-beam, which is a beam connecting the shoes on either side of the car, came against him, and shoved him along, the plaintiff rolling in front of it for some distance. Finally, his shoulder got under the brake beam, and shoved it up somewhat, and then the car passed over him, the wheels crushing both legs. The plaintiff was knocked off the car when the rear end was between 30 and 40 feet south of the Forty-Seventh street bridge, and, as might be inferred from the evidence, the car did not pass over him until he reached what is termed the hydrant between Forty-Sixth and Forty-Seventh streets, about 40 feet north of Forty-Sixth street; the car proceeding south as far as Forty-Sixth street after it had run over the plaintiff. The plaintiff was picked up and taken to the hospital, where both legs were amputated, and he remained in the hospital for several months thereafter. This ash car was a car which was used for the purpose of carrying away the ashes from the depot and the yard adjoining to a place several miles north on the Harlem, where the ashes were dumped. It had been loaded that afternoon, and had been left at the spot where the collision took place.

The brakes on this car were out of order. In the language of one of the witnesses, the difficulty was that the connection-rod, onnecting the shoes of the brake with the brake-staff, came up against the brake-staff, and would not hold the car. The connection-rod was too long. It is the rod to which the brake-chain is attached at one end, connecting the staff to the rod; and the brake-chain wound around the staff, and drew the rod up to the staff before the shoes were brought up against the wheels, and then, of course, no further turn could be made; and in this way the brake was, as the witness says, practically useless. There was evidence in the case from which a jury might be asked to infer that the defendant had notice of the defective character of the brake some time before the happening of the accident, and that it had attempted once to repair it, but had failed to make it work properly. There was evidence tending to show that the engine, in backing towards the car, went at the rate of from eight to ten miles an hour. The car was not seen by the engineer, and he was not expecting it at that particular point; nor did the plaintiff or his companion, when they went down to look after the car spoken of by their foreman, know where the car was, nor did they expect to find this ash car. There was evidence that it was customary to set the brakes when cars were left on the tracks, as might be inferred, for the purpose of keeping them steady, and to prevent their being moved far, if struck while making up trains, or in moving engines or cars about the yard; evidence being given that collisions from such a cause were of frequent occurrence. There was also evidence that if a car, loaded, as this one was, with ashes, standing on a track in which there was a slight curve, was struck by an engine going at the rate of eight or ten miles an hour, if the brakes were in proper condition, and set tight, the car would not move from the effects of such a collision more than from five to ten feet; whereas, in this case, with the car standing with unset brakes, consequent upon the brakes being out of order so that ...