124 N.Y.S. 272 | N.Y. App. Div. | 1910
Plaintiff has been awarded in this action damages for personal injuries suffered by him shortly after midnight on June 26, 1909, he being then a fireman on one of defendant’s locomotives. On attempting to alight from his locomotive he fell, and a wheel of the rear truck of the tender crushed one of his legs. The case was submitted for the jury’s decision as the ordinary common-law action in negligence, '
Our examination of the evidence leads to the conclusion that defendant’s failure to supply some suitable grabiron, or handhold, fixed on or near the corner of the locomotive, within reach of a person using the steps in getting off or on the locomotive would, if found by the jury as a fact, present a fair question for the jury to pass upon whether this omission was negligence of the defendant to which this accident was due, and without which it would not have happened. This question was properly and clearly submitted to the jury; and, except for the fact that they were also permitted, erroneously as we conceive, to consider another fact as a separate ground upon which they might find defendant’s negligence established, we should not disturb the result of the verdict.
One assignment of negligence of defendant found in the com
The effect of this charge taken in' connection with the statements preceding it, and the court’s disposition of defendant’s requests to charge, was clearly an instruction of the jury that negligence of defendant might be predicated solely upon a determination that defendant had not supplied this locomotive with proper steps. The steps in question are of a kind designated in the testimony» as ladder, stirrup, or skeleton-strap steps. Such steps are made of flat, or strap, iron, an inch and a half, or inch and three-quarters, wide. They are attached to the corner of the frame of the tender and extend vertically downwards. The sides and lower step are formed of one piece of iron bent in stirrup shape, the step at right angles with the sides. The' upper step, made of similar iron, is fixed to the sides, above and parallel with the lower step. The two steps are placed relatively like the rungs of a ladder. There was no defect in the steps themselves, if it was reasonably safe, to use steps so constructed. They Were of a type for many years in ' general use by defendant on its locomotives, and it appears, as the court instructed the jury, that no accident had ever theretofore resulted from their use. The steps in question were strong and were "securely attached in the proper position. It appears that a' different kind of steps is used on other railroads, known as box steps. These have a "back and treads of wood. But it doe's not appear that experience has demonstrated that they.are safer or more practical in actual use than the stirrup step. The ladder step is not obviously dangerous for the use designed; for defendant’s long and continued use of steps of similar construction had demonstrated that it was adequate, safe and convenient. Under such circuni
If plaintiff’s version as to how the accident occurred is to be accepted as true, we are brought back to the fact that it was due, not to any defect in the .steps, but, if in any way attributable to defendant’s negligence, it was solely because there was no handhold or grabiron on the engine within his reach when he lost ■ his balance on the step by the sudden starting of the engine.
Respondent’s counsel ingeniously suggests that the submission, as bearing upon defendant’s negligence, of the question whether the steps were proper and reasonably safe for the use for which they were intended, may be sustained, because they were intended for use in connection with grabirons or handholds at each side, and that 'with the grabirons they formed the means or combination supplied by defendant for getting on and off the locomotive. But it does not seem that was the effect of the charge, or that the jury could have so understood it. Confessedly a proper and safe grab-iron was on the tank. It would not be seriously urged that it would not be error to submit to the jury, as a separate ground upon which they might find defendant guilty of negligence, the question whether that grabiron was a safe and proper one, because they
We are unable to say that the jury under the charge of the court may not have found defendant negligent because the step was unsafe, and that the plaintiff would not have slipped or fallen if some other kind of step had been supplied. The verdict was a gen- ' eral one, and the jury having been erroneously permitted to predicate their verdict solely upon the ground that the step was defective, and the verdict not being otherwise so clearly. supported that a direction thereof by the court could be upheld, reversal of the judgment and order necessarily follows. (Baldwin v. Burrows, 47 N. Y. 199.)
All concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.