Wallace v. Cent. Vermont R. Co.

• Decision Date: 05 May 1893
• Citation: 138 N.Y. 302,33 N.E. 1069
• Parties: WALLACE v. CENTRAL VERMONT R. CO.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 302

33 N.E. 1069

WALLACE

v.CENTRAL VERMONT R. CO.

Court of Appeals of New York.

May 5, 1893.

Appeal from supreme court, general term, third department.

Action by George S. Wallace against the Central Vermont Railroad Company for injuries sustained by plaintiff while in defendant's employ as a brakeman. From a judgment of the general term (18 N. Y. Supp. 280) affirming a judgment of nonsuit, and an order denying plaintiff's motion for a new trial, plaintiff appeals. Reversed.

Swift & Sanford, (Theodore H. Swift, of counsel,) for appellant.

Louis Hasbrouck, for respondent.

EARL, J.

The plaintiff, in June, 1889, was a brakeman for the defendant, and, while in the discharge of his duty on the top of a moving train, he was hit by a low bridge, and severely injured, and he brought this action to recover his damages against the defendant. The defendant denied the allegations of negligence against it, and alleged contributory negligence on the part of the plaintiff, and upon the trial he was nonsuited. The propriety of that nonsuit is the matter for our determination.

At the time of the accident there were 54 cars in the train, and there were two brakemen assigned to duty upon the train. It was the duty of the plaintiff to be on top of the cars, ready to respond to calls for brakes, and to keep watch over the train to see that it did not part, and run together. He was required to be in position so that if the train broke he could observe it, and at once signal the engineer. At the time of the accident the train was at a place in the road where there was a reverse curve, and more than ordinary risk from the circumstance that it might break. The distance from the rail to the bottom of the bridge was sixteen feet and four inches. The top of the car was twelve feet and a quarter of an inch above the track, and the plaintiff was five feet and ten inches high. The plaintiff had been in the employment of the defendant for several weeks at the time of the accident, and had daily passed over the road under the bridge, and had thus made about 31 trips over the road. He must have known of the existence of the bridge, and must repeatedly have noticed it. When he passed under the bridge at prior times he may have been facing it, and may thus have avoided the danger, or he may have been sitting down on top of the car, and thus been out of reach of the bridge. At the time of the accident he was upon a very long train intent upon the discharge of his duty, with his face towards the rear of the train, in a position to most effectually discharge his duty, and thus his back was towards the bridge. He was not at the time aware that he was approaching a place of danger, and had no warning of the bridge. Indeed, the bridge was not in his mind, and the trial judge nonsuited him because he did not at the time have the bridge in his mind, and thus guard himself against the danger of injury. We do not think that one thus situated can, as matter of law, be charged with negligence because he did not take notice of the fact that he was approaching the bridge, and thus know that he was in a place of danger. He was in a place where there was danger that the train might break in two, and he was intent upon the discharge of his duty. It cannot be said that a brakeman is, as matter of law, careless because he does not bear constantly in mind the precise location where the train is, and where every bridge is.

There is another fact entitled to some weight upon this branch of the plaintiff's case. It is provided by section 2 of chapter 439 of the Laws of 1884 that every steam railroad shall, within six months after the passage of the act, erect, and thereafter maintain, suitable warning signals at every low bridge or structure which crosses the railroad above the track, where such warning signals may be necessary for the protection of employes upon the top of cars from injury. This railroad had erected warning signals, called ‘telltales,’ on the sides of its bridges, by putting up crossbars at some distance from each bridge over the tracks, with wires hanging down from the same, which, by striking a brakeman on top of the car, would warn him of his approach to the bridge. The plaintiff knew of this requirement, and of the existence of these telltales at the bridges, and while he could not omit, on that account, all care for his own safety, yet the absence of telltales would be one of the circumstances proper for the jury to consider in determining the question of his negligence. The cases of McGrath v. Railroad Co., 59 N. Y. 468, 63...