30 N.Y.S. 724 | N.Y. Sup. Ct. | 1894
The death of the plaintiff’s intestate was caused by cars suddenly coming together while he was between them, upon the track in the defendant’s yard at Buffalo, on December 13, 1892. The question is whether the charge that the death was the result of the negligence of the defendant is supported by evidence. On October 6, 1892, the defendant entered into a contract with W. J. Gillette, whereby the latter agreed to repair, in the manner specified, the roof of the train shed of the Exchange street passenger station of the defendant, at the city of Buffalo, and to-commence the work within five days. Gillette sublet the work to one Talbut, who proceeded to perform it. He employed Dempsey as foreman, who acted in that capacity until his death. In. the rear, i. e. the south side, of the building, and between it and , Green street, were two parallel tracks, running east and west, ' and south of Green street was also a track, upon which the defendant placed a car for the use of the contractor. It is designated as a tool car. In that car much of the material for the work was kept and prepared for use, and was taken from there to the building, from time to time, as wanted for use in the work upon the roof; and the workmen, in number from 12 to 18, deposited their lunch pails in the car, and there ate their lunches. The material for the work was taken from the tool car across the railroad tracks-of the defendant to the depot building, and hoisted onto the roof. The track next to the building was mainly appropriated to the-use of the switch engine in switching cars. None were left upon it. That track was generally clear. The next track south of it was occupied by passenger, mail, and baggage cars placed there and taken from it as the business of the company required. And,
The defendant, through its agencies, was advised that the tool car was used by the contractor in connection with the work, and that he, by his employés, was engaged in the performance of the contract, and the jury were permitted by the evidence to find that the workmen frequently, each day, carried materials for the work from the car to the building, and, in going back and forth for such purpose, passed over the defendant’s track, through an opening between the cars standing upon it, and that this was known to the company, through those conducting its business in and about the premises. In view of such facts, the deceased and his coemployés were not mere volunteers upon the defendant’s tracks. Their relation to the work required them to go to and from it, and in doing so they had rights which it was the duty of the defendant to recognize; and assuming, as we may, upon the finding of the jury, that the defendant was advised that the persons engaged in the work of performing the contract were for that purpose passing over its tracks through an opening, or at the place in question, the defendant owed to them some duty to use reasonable care for their protection, and that they should not, while so engaged, suffer injury by its negligence. Indermaur v. Dames, L. R. 2 C. P. 311; Smith v. Dock Co., L. R. 3 C. P. 326; Newson v. Railroad Co., 29 N. Y. 383; Driscoll v. Cement Co., 37 N. Y. 637; Stinson v. Railroad Co., 32 N. Y. 333; Murphy v Railroad Co., 118 N. Y. 527, 23 N. E. 812; Young v. Railroad Co., 30 Barb. 229; McDermott v. Railroad Co., 28 Hun, 325; Goodfellow v. Railroad Co., 106 Mass. 461. The question of negligence on the part of the defendant was submitted to the jury, and it had for its support the facts that the switchman shoved some cars down an incline against the west end of the cars on the track with such force that the gap, in which the deceased was at that moment, was suddenly closed, causing his death. This was done without any signal or warning to appraise him of the danger. And there is evidence tending to prove that he was chargeable with no contributory negligence. He left the tool car, and was proceeding towards the building where the work was being done under his direction, and
It is urged by the learned counsel for the defendant' that it was practically impossible to provide for or maintain an opening for the workmen to pass through' upon this track, because the defendant was frequently daily putting cars upon it, and, as they were wanted for use, taking cars from the track, and, in doing so, necessarily had to move, more or less, the cars upon it, and that the deceased must have-known that this was being done. While , there is much force in that suggestion, founded upon the evidence, the facts before mentioned, which the jury could find, still remain,— that the workmen, for the purposes of the business in which they were engaged, were, with the knowledge of the defendant, frequently crossing the track, and the use which was made of the track by the company did not necessarily deny to its servants the opportunity to use such care as was reasonable under the circumstances for the protection of those workmen against injury by the movement of its cars. The case may be a close one, but the facts were fully and fairly submitted to the jury. The conclusion is that the verdict is supported by the evidence. The judgment and order should be affirmed. All concur.