29 N.Y.S. 274 | N.Y. Sup. Ct. | 1894
This action was brought against the defendant to recover damages for the alleged negligent killing of the plaintiff’s husband. He was at the time in the employ of the defendant as a brakeman upon a local freight train, running between Rochester and Syracuse, by the way of Canandaigua. Part of his duties as a brakeman was to assist in making up and switching trains. In doing that work he was required to couple and uncouple cars and manipulate the switches. On the 6th day of November, 1892, while thus engaged in the defendant’s yard at Canandaigua, his foot was caught between a guard rail and an adjoining rail on the main track of the defendant’s road, and, not being able to extricate it, a passing car ran over him, causing his death. The alleged negligence of the defendant upon which the plaintiff based her right to recover was the absence of an appliance called “blocking” in the opening where the deceased’s foot was caught. There was evidence tending to show that a device had been theretofore adopted by some railroads, to a limited extent, known as “blocking.” It was done by inserting in the space between the guard rail and the main rail a piece of plank of such thickness as to permit the wheels of the locomotives and cars to pass over it. It was there fastened by driving spikes into it. There were a large number of guard rails in the Canandaigua yard, and about one year before the accident they had all been blocked. The device had not been adopted generally by railroads. One of the reasons why it had not been adopted was because of the great difficulty of keeping the blocking in place. Snow, ice, gravel, and other substances were liable to accumulate upon the blocks, and the flanges of the wheels, in passing over them, were quite apt to force them out of place. The evidence tended to show that in some cases they were almost immediately forced out; in other cases they would remain in place for a considerable time, the length of time being entirely uncertain. They were to some ex