131 N.Y.S. 286 | N.Y. App. Div. | 1911
. The plaintiff ought not to succeed in this action. His complaint alleges that he was in the employ of the Brooklyn Heights Railroad Company on or about May 30, 1907, and for some time prior thereto, as depot master in the car barn of the defendant. (The second defendant appears to have had no relation to the accident, and will not. be considered in this discussion.) The actionable negligence is alleged as follows: “ That at the time and place aforesaid, while the plaintiff was in the proper discharge of his duties as an employee of the defendant, The Brooklyn Heights Railroad Company, and while
Upon the trial the plaintiff testified: “ I was working at that time as night depot master. I had been night depot master in this bam about ten days. Before that I was a day depot master in the same bam for about two months. My duties in the barn were to receive cars that were sent there from other depots, also to send cars away as ordered to be shifted to other depots. • * * * This car barn was used for the storage and repair of cars. The barn ran from Second to Third avenue and from Fifty-eighth to Fifty-ninth street. The barn from Second to Third avenue was about 600 feet long. * * * The short way was about 200 feet. * * * There were fourteen tracks in the bam, coming in off Third avenue.” It appears from his testimony that this car barn had three floors, and that the cars came into this barn on the third flooi, where the accident occurred, from Third avenue at grade or practically so. Fourteen of these tracks came into the barn, and cars could be switched from track 1 to 2, but if a change was desired from track 1 to 3, it was necessary to use the shifter which the defendant had installed for that purpose. This
Tried by this standard, there is clearly no- cause of action. The suggestion that the defendant had not provided a reasonably safe place for the plaintiff to perform his work is not supported by any evidence. The car bam was the place provided for him to work; he was night depot master, and the depot was this car barn. There is not a particle of evidence
It must be equally clear, it seems to us, that the plaintiff did not establish any negligence on the part of the defendant in failing to promulgate rules for the conduct of the affairs of the corporation in this car barn. In the first place, the plaintiff did not allege any negligence in this respect, and it is not questioned that this is a matter which must be pleaded and proved. (Wagner v. N. Y., Chicago & St. Louis R. R. Co., 76 App. Div. 552, 559; Murphy v. Milliken, 84 id. 582.) No evidence was offered tending to show that the defendant had failed to establish proper rules, or that any rtile which was practicable and reasonable could or should have been' devised by the defendant, under the circumstances shown to exist, to obviate the danger, which was known to the plaintiff, and • which was as obvious as any danger well could be. In the absence of all evidence to the contrary, the master is presumed to have done his duty; or, perhaps, it is more accurate to say
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Jenks, P. Ji, and Carr, J., concurred; Hirschberg and Burr, JJ., concurred in result.
Judgment and order reversed and new trial granted, costs to abide the event.