69 N.Y.S. 73 | N.Y. App. Div. | 1901
On a former appeal in this case the judgment was reversed because the fault of the defendant, if any, arose from its failure to promulgate proper, rules for the management and conduct of the movement-of cars, its failure to direct that proper warning be given, and that. “ there is not á particle of evidence to show that the defendant was. wanting on its part in the respects indicated; and on the record before us the negligence, if such there was, was solely that of fellow-servants.” . (Corcoran v. New York, N. H. & H. R. R, Co., 46
We are. of opinion that the defendant was entitled to this direction, assuming that there was any question to go to the jury. It is not for a jury to say, after an accident has happened, that the defendant, ought to .have made and promulgated rules reasonable and practicable for the government of its employees which would have given this man “ more effective notice of danger than that which he received at the hands of the brakeman and others in the yard upon that occasion,” as suggested by the learned court in charging the jury, but whether the defendant has exercised that reasonable degree of care which the law demands, and this is to be determined by proof that some particular rule or rules which common experience and a knowledge of the dangers of the situation ought to suggest, if adopted and in force, would have obviated the
If the defendant’s employees were known to be doing their work in a reckless and dangerous manner, as in the. case of Doing v. New York, Ontario & Western R. Co. (151 N. Y. 579), it would have been
It seems clear that there was no case presented for the jury; certainly it was not for thabbody to say, in the absence of evidence showing the necessity of some particular rule, that the defendant had been negligent in the discharge of the duty it owed to this plaintiff.
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
Note.— The rest of the cases of this term will be found in the next volume, 59 App. Div.— [Rep.