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

• Decision Date: 01 March 1898
• Citation: 49 N.E. 674,155 N.Y. 215
• Parties: PARK v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 215

49 N.E. 674

PARK

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

Court of Appeals of New York.

March 1, 1898.

Appeal from supreme court, general term, Fourth department.

Action by Thomas E. Park against the New York Central & Hudson River Railroad Company. From a judgment of the general term, Fourth department (32 N. Y. Supp. 482), affirming a judgment for $2,814.93, damages and costs, entered on a verdict in favor of plaintiff, defendant appeals. Reversed.

Frank Hiscock, for appellant.

Louis Marshall, for respondent.

HAIGHT, J.

This action was brought by the plaintiff, who was an engineer in the employ of the defendant, to recover for injuries sustained by reason of a collision with a freight train, caused by the negligence of one Brown, a brakeman in the employ of the defendant. The freight train, on the evening of November 21, 1891, had been switched from its regular track to the east-bound passenger track near Canastota, and had proceeded eastward a little over a mile from that station, when it became stalled, and the train broke in two, leaving the rear portion of the train stationary at a point about 800 feet east of the end of a curve. Sanford Brown was the rear brakeman upon the train, and it then became his duty to go back upon the track, and signal the approaching train, so as to prevent a collision. The plaintiff was following upon the mail and express train known as ‘No. 32,’ and it is claimed that Brown neglected to go back a sufficient distance from his train to give the signals required to prevent a collision, and that, owing to his neglect of duty in this regard, a collision occurred, in which the plaintiff suffered the injuries for which this action was brought.

Inasmuch as the plaintiff and Brown were co-servants, this action could not be maintained without showing that Brown was an incompetent man, unfit for the service in which he was engaged, and that such incompetency was known, or should have been known, by the officers of the defendant. It appears that he was 35 years of age, and was born at Corinth, Saratoga county, in this state; that from early boyhood he had lived in the city of Schenectady, and attended the Union school at that place, and in 1881 entered the employ of the New York Central & Hudson River Railroad Company, and ran upon a train as a brakeman, between West Albany and De Witt, for a period of about two years. After this he entered the employment of Saul & Davis, in Syracuse, hardwaremerchants, for a time, and then again entered the employ of the New York Central & Hudson River Railroad Company under a Mr. White, the master mechanic at Syracuse. He served as an accountant and assistant bookkeeper for about three years and six months, after which he went to Louisville, in the state of Kentucky, and entered the service of the Louisville & Nashville Railroad as brakeman. He then became yard clerk, and after that service clerk and detective for the road. In 1890 he returned to this state, and again entered the employ of the defendant as extra conductor, and served about seven months. He then returned to Louisville, and in August, 1891, returned to this state, and was employed as a flagman, and continued in such employment down to the time of the accident.

The plaintiff, in order to establish his cause of action, gave considerable evidence with reference to the general reputation of Brown for carelessness, which was taken under the...