48 N.Y.S. 503 | N.Y. App. Div. | 1897
This action was begun November 20, 1895, to recover damages occasioned by the death of the plaintiff’s intestate, caused, it is alleged, by the negligence of the defendant.
From 1890 until July 8, 1895, the plaintiff’s intestate had been employed as a fireman on defendant’s freight trains running between
It is alleged in the complaint that the defendant was negligent in permitting this pole to stand within forty-nine inches of the south rail of its track, which negligence, it is alleged, was the cause of the death of the plaintiff’s intestate. The evidence shows that the telegraph poles east and west of the pole in question were from twelve to thirteen feet distant from the nearest rail, and that there was sufficient unoccupied land, so that this pole might have been set twelve or thirteen feet from the track. The pole formed no part of any structure belonging to the defendant’s road and necessary for its operation, and the question is not the same as presented by the nearness of the sides of bridges and like structures to passing cars. I think that the evidence was sufficient to authorize the jury to find that the defendant was negligent in permitting this pole to stand in the position in which it did; that the defendant did not, in this respect, exercise due care to furnish a reasonably safe place for its employees to per
I think the evidence was sufficient to authorize the jury to find that the plaintiff’s intestate was killed while in the discharge of his duty. It is urged that the intestate had passed this pole on many previous occasions. This is undoubtedly true. But whether he was negligent in not knowing how near to the track it stood, and bear
Under the rule laid down in Wallace v. C. V. R. R. Co. (138 N. Y. 302); in Fitzgerald v. N. Y. C. & H. R. R. R. Co. (88 Hun, 359), and in Ferren v. Old Colony R. R. Co. (143 Mass. 197), the questions whether the defendant was negligent, and whether the plaintiff’s intestate, by his own negligence, contributed to the accident, were for the jury, and its verdict should not be disturbed.
The judgment and order should be affirmed, with costs.
.All concurred.
Judgment and order affirmed, with costs.