131 N.Y.S. 686 | N.Y. App. Div. | 1911
Plaintiff’s intestate was employed by the defendant as a motorman on one of its cars, and on the evening of June 19, 1908, he had run his car into the defendant’s car barn, and was engaged in preparing it to remain over night, the exact details of what he was doing being lacking in the record. While thus employed a second car, operated by the defendant’s servants, came into the barn and stopped about four feet away from the decedent’s car. The decedent appears to have been upon the track, between his car and the second car, with his hands up, probably engaged in placing his trolley pole. The conductor of the second car pulled down the trolley pole, turned it around to the front end, where the motorman was standing, and, being-unable to place the trolley pole from his standpoint, the motorman on the front platform took the rope, reached out over the dashboard and placed the trolley wheel in contact with the overhead wire. As soon as the contact was made the second car moved suddenly forward, and plaintiff’s intestate was crushed between the two cars and killed.
It is urged upon this appeal that the motorman of the second car was not the defendant’s vice-principal, under the
The evidence establishes that the second car came into the barn, and that the power failed just as the car was about. twenty feet from the-point where it stopped; that the conductor brought the trolley .pole around to the front; that the motorman took hold of the rope and made a contact with, the trolley wire, and that the car suddenly started forward, doing, the injury before the motorman could reach the brake. The defendant’s theory is that the motorman. in leaning over the controller box came in contact with the controlling lever in some manner and turned on the current when the trolley made the contact with the wire, but the evidence is not strong in support of this theory, and the more probable view is that the power having failed as the car came into the barn the motorman neglected to turn "off the. current, and that when the contact was made with the wire, with the return of the power, the car was ready to move, and did exactly what it was bound to do under the circumstances. This seems to have been the view taken by the jury, and we think the evidence justifies this inference.
The judgment and order appealed from should be affirmed, with costs.
' Present — Jenks, P. J.,-Burr, Thomas, Woodward and Bien, JJ.
Judgment and order unanimously affirmed, with costs.