46 A.D. 201 | N.Y. App. Div. | 1899
’ The action is for personal injuries. The- plaintiff was a yardman in the defendant’s employ, and while occupied in sweeping snow from the tracks in its, yard was struck by two freight cars which had been “ kicked ” by the engine engaged in the distribution of. the cars in the yard. The plaintiff testified that he was keeping a sharp lookout for the movement of the cars, and tlia-t these two ears came down oh him without warning. The brakeman on the cars testified that he called to the plaintiff as the cars approached, so as to warn him of that fact, and similar evidence was given by another yardman. A train was moving at the time on another track, making a noise which may have prevented the .plaintiff from hearing the warning given. This is substantially the whole evidence in the case. The defendant’s motion for a nonsuit was denied- The learned trial court instructed the jury that it was- the duty of the defendant to give the plaintiff proper warning of the approach of the cars, and that if no such warning was given the defendant was liable.
It is, doubtless, true that it was the' duty of the defendant to carry on its business, so far as practicable, with 'due regard to the safety of its employees. It may be that it should have provided that warning of the approach of the cars be given to the yardman, though we are inclined to believe that this latter is rather a question
The judgment should be reversed and a new trial granted, costs to abide the event. v
All concurred, except Bartlett, J., absent.
Judgment and order reversed and new trial granted, costs to abide the event.