195 N.Y. 267 | NY | 1909
The plaintiff, upon the day he met with the accident, which is the subject of this action against the defendant, was engaged in shipping produce in cars and, at the time, was standing upon the platform of a station of the defendant’s road, waiting for a freight train to pass by in order to cross the tracks. His complaint alleged that he was struck upon the head “by some sharp instrument, either of iron or wood, extending from, or hanging to ”, the train. He testified that the train approached upon the track nearest to the platform and, after the engine and “ a couple of cars, or some cars ”, had passed him, “ as he looked at the train, he saw something, the outline he could not exactly describe and he couldn’t tell what it was that hit him.” Again, he describes himself as standing still, in the middle of the platform,' “ about half way between the station and the end of the planks ”, and says, “ what struck me I don’t know. When I saw the thing that I saw the hazy outline of it, it seemed very close to me. * * * I couldn’t say how near it was to me when I saw it, because as I saw it that was the last I can remember. I will swear positively that it was not the hazy outline of the locomotive, because the locomotive had passed me before that occurred.” The plaintiff furnished no other evidence of what had caused him the injuries complained of. He was found lying between the tracks and the platform, with his skull fractured by a blow received upon the forehead, leaving a round wound “ like a fifty cent piece.”
According to the defendant’s evidence, as furnished by the engineer and fireman of the train, as they approached the station, the plaintiff was seen standing on the edge of the platform and, after the train coming in the other direction had passed, to step off, when he was almost instantly struck down by the cylinder head of their engine. Their train Avas passing at the rate of thirty miles an hour. The head brakeman testified that the train stopped and that he went back along the south side of the train and did not see anything projecting from it. Further evidence was given by the , defendant, illustrating the general situation at this station, which is of considerable importance. According to measurements, made by a surveyor, the platform facing the tracks was over seven and one-half feet Avide and its edge Avas distant from the nearest rail nearly five and one-half feet. The plaintiff, therefore, from his account must have been standing about nine feet from the track. To the west of the station platform, and distant 94 feet therefrom, was a mail crane, the post of which stood at a distance from the nearest rail of about four and one-half feet. Still further to the Avest, and
This rule, which is so often invoked in these accident cases, was not the declaration of the discovery of some new legal principle, available to a complainant to supplement the deficiency in the required proof of the charge of negligence.
For these reasons, the judgment should be reversed and a new trial should be ordered ; costs to abide the event.
Cüllen, Ch. J., Werner and Hiscock, JJ., concur; Edward T. Bartlett, Willard Bartlett and Chase, JJ., dissent.
Judgment reversed, etc.