22 N.Y.S. 449 | N.Y. Sup. Ct. | 1893
This is an appeal from a judgment entered upon a verdict in favor of the plaintiff. The action was for the alleged negligence of the defendant in the use of a locomotive engine upon its railroad, from which sparks were emitted, which it is alleged ignited powder in a powder mill, in which plaintiff’s intestate was employed, thereby causing his death. This case was before this court at a former term on an appeal from a judgment entered upon an order of the trial judge dismissing the plaintiff’s complaint. 19 N. Y. Supp. 774. The evidence on that appeal is, so far as we can discover, in all respects like that contained' in the record on this appeal, and this court then reversed the judgment, and ordered a new trial, on the ground that there were two questions of fact which should have been submitted to the jury; one whether the spark arrester on the smokestack of the defendant’s locomotive-employed in drawing the train of cars up the grade past the powder mill where plaintiff’s intestate was employed was reasonably safe and suitable for the use to which it was applied, and whether there was not another and more safe smokestack and spark arrester, disclosed by the evidence to be in use by railroad companies, and which the defendant, in the exercise of reasonable care, could and should have used, and thus minimize the danger to combustible material along its railroad. The other question for the jury was whether the spark from defendant’s locomotive ignited the powder and thus produced the explosion, which caused the death of plaintiff’s intestate. This court then adopted and applied to this case the rule laid down by the court of appeals in the case of Steinweg v. Railway Co., 43 N. Y. 123. It is now urged by the appellant that this court misconceived the effect of that decision, and that,, as in that case, contractual relations existed between the plaintiff and defendant. The defendant owed a higher duty to the plaintiff1 to adopt, the best and safest machinery and appliances reasonably attainable than was required of the defendant in this case towards the plaintiff’s intestate. No authority is cited by the learned counsel for the appellant to-sustain that proposition. While it is true that the case of Steinweg v.
PUTNAM, J., concurs in result. HERRICK, J., concurs.