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

• Decision Date: 29 November 1892
• Citation: 136 N.Y. 77,32 N.E. 603
• Parties: POTTER v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 77

32 N.E. 603

POTTER

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

Court of Appeals of New York.

Nov. 29, 1892.

Appeal from superior court of New York city, general term.

Action by Nellie Potter, administratrix of John Potter, deceased, against the New York Central & Hudson River Railroad Company. From a judgment of the superior court of New York city, general term, (19 N. Y. Supp. 862,) affirming a judgment for plaintiff, defendant appeals. Reversed.

Hamilton Harris, for appellant.

Abram Kling, for respondent.

ANDREWS, J.

The plaintiff's intestate was at the time of the accident which caused his death engaged in his duty of in specting cars upon a track of the defendant in the city of New York, used in part for the storing of cars awaiting inspection. While he was engaged in this business, other employes of the defendant, under the direction of a yard master, were engaged in drawing out cars from another track, two or three at a time, and shunting them onto the track on which the cars stood which were being inspected by the intestate. The inspection was made by two inspectors, one passing on each side of the cars, and making the necessary observations. The intestate and his coemploye discovered that one of the bumpers between the first and second cars from the end of the line in the direction from which the shunted cars came was out of order, and the intestate passed between the two cars, and stood between the bumpers with a memorandum book in his hand. At that moment two cars were shunted upon the track, and collided with the cars which were being inspected by the intestate, and he was crushed between the bumpers, and soon afterwards died. The complaint charges that it was the duty of the defendant ‘to have flagmen upon the freight cars attached to the engine when in motion, to signal to the operator of the engine of any obstruction,’ and the failure to perform this duty is made by the complaint the gravamen of the action. The proof took a somewhat wide scope, and it was claimed on the trial that proper and reasonable care required that there should have been a brakeman on the shunted cars to control their motion, when detached from the engine, in an emergency. Upon the issue whether there was a brakeman on the two shunted cars the only evidence on the point, on the part of the plaintiff, was given by the coemploye of the intestate, who testified that he was thrown down by the collision, and that as soon as he got up he looked to see if any brakeman was on the top of the cars which collided with the stationary cars, and that ‘there was no brakeman there.’ On the part of the defendant, three witnesses, two of them employes of the defendant and one a stranger, testified that there was a brakeman on the two running cars at the time of the collision. When the plaintiff rested, the defendant moved for a nonsuit, on the ground that no cause of action had been proven against the defendant, and that the negligence (if any) was that of the intestate or of a coservant, and the motion was denied. It was repeated at the conclusion of the whole evidence, and the motion was again denied, and to the denial of each motion exception was duly taken by the defendant. The jury found a verdict for the plaintiff for $5,000.

We think the motion made on the whole case should have been granted, for the reason that the evidence did not disclose any omission of duty by the defendant, which, under the law of master and servant, made it responsible for the negligence which caused the death of the intestate. That the shunting of the two cars upon the track on which the intestate was engaged in discharging the duty of inspector, and permitting them to come in contact with the stationary cars, was gross negligence, seems to...