34 N.Y.S. 824 | N.Y. Sup. Ct. | 1895
The plaintiff’s intestate, Thomas Fitzgerald, was on November 11, 1887, in the employ of the defendant as a brakeman on a freight train that left De Witt early in the morning, passing eastwardlv. The claim of the plaintiff is that, as the train passed under a low bridge between Green’s Corners and Rome, the decedent, who was then on the top of one of the freight cars, was hit by the bridge and killed. It was between 5 and 6 o’clock in the morning, not fully light, and at that place there is a down grade,
Our attention is called to some rulings upon evidence, but we find no reversible error. It was proper to show the situation, at the time at the bridge as to signals. Whether there was any reason or necessity for the decedent’s going onto the top of the car was for the jury to say, upon all the facts.
The defendant claims that the court, in its charge, gave undue force to a rule of the defendant that provides that:
“In descending grades, the conductors will see that their men are at their posts, and not allow their trains to acquire a greater speed than 1 mile in 4 minutes. Conductors and engine men must not violate this rule under any circumstances.”
One of the witnesses of the defendant testified that this applied only to the West Albany and Schenectady grades. The rule con-
Judgment and order affirmed, with costs. All concur.