115 N.Y.S. 1019 | N.Y. App. Div. | 1909
The judgment and order should be affirmed, with costs.
The action was brought to recover damages for personal injuries alleged to have resulted from defendant’s negligence. The action was tried as one at common law, but the plaintiff claimed the benefit of the Barnes Act, so called, section 42a of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1906, chap. 657).
First. The sole negligence alleged against the defendant was that of the engineer. At common law he would be a fellow-servant of plaintiff, and no recovery could be had for such negligence. The Barnes Act, however, provides that in actions against railroad companies by their employees for injuries received in their service, persons who have as a part of their duty, for the time being, physical control or diz-ection of the movement of a locomotive engine, car or train, are vice-principals of the railroad coznpanies, and not fellow-servants of such eznployees.
We are unable to see why this act is not applicable to the present case, and why it does not permit a recovery for plaintiff’s injuries, so far as the element of defendant’s negligence is concerned. The trial court took this view of the case, and submitted faii’ly to the juzy the questions whether the engineer was guilty of negligence in the manner of starting the engine and train. We do not take the view entertained by defendant’s cozzusel, that it was the plaintiff, the brakeman, rather than the engineer who was in control of the movements' of the engine and tz'ain. He gave signals to the engineer, it is true, but the engineer was not under his control, was not bound to obey his directions. We think the trial court committed no error in the submission of this branch of the case to the j™7-
' Second. The question óf conti'ibutory negligence was carefully .and correctly submitted to the jury by the trial court. Among other things they were told that they must find, in order to render
We think the verdict under evidence and the charge, was one that -the jury was authorized to render, and that it should not be set aside as contrary to the evidence, under the well-established rules: .applicable to. such cases. -
The judgment and order should, -therefore, be affirmed.
All concurred.
Judgment and order affirmed, with costs.