217 A.D. 301 | N.Y. App. Div. | 1926
Plaintiff was a brakeman in the employ of the-defendant railroad company. He was hurt at about eight o.’clock A. M. of September 21, 1925, which hour was practically the close of his hours of work which began at midnight of the night before. The defendant .maintained a large freight yard in Long Island
The defendant called as witnesses the train conductor, the locomotive engineer and fireman, the latter of whom was operating the engine at the time under a sort of training to fit him to be an engineer, and two other brakemen engaged in like employment as the plaintiff. There was no testimony offered by defendant from which it could be said that a finding should have followed that there was no defect in the coupling.
The complaint charged the defendant with being engaged in interstate commerce at the time of the accident, and that the plaintiff’s work fell within that category. The complaint further alleged that the defendant was negligent in its management of the train, and that “ by reason of the defects and insufficiencies due to the negligence of the defendant, its agents and servants, in the locomotives, cars, engines, appliances, brakes, coupling pins and other equipment, and because of the reckless and dangerous manner in which it caused its cars to be operated, and because of the failure on the part of the defendant to comply with the laws of the United States, including the Employers’ Liability Act and the Safety Appliance Act, and because of its failure to provide suitable and proper safety appliances upon its said car,” his injury was caused. The complaint further specified as grounds of negli-* gence, defective coupling devices, a lack of proper signals to protect plaintiff in his work, and a negligent and careless operation, management and control of “ said engine and cars.”
The answer admitted that at the time in question and for some time prior thereto the defendant was engaged “ in what is commonly called interstate commerce.” This was likewise admitted upon the trial, but the admission was coupled with a claim that the defendant was not so engaged “ at the time of the happening of this accident.”
Testimony on behalf of the plaintiff given by an employee of the defendant whose work required him to proceed to the different stations of the defendant and to check up the freight cars and “ keep them moving,” established that the freight yard in question received large numbers of freight cars from “ floats ” which transported them in the harbor and rivers surrounding Manhattan island from ports in New Jersey and which cars were conveying freight from various foreign States; that the car here involved
The United States Supreme Court have held (Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66) that negligence may be inferred on the part of the railroad company “ from the fact that the coupler failed to perform its function, there being no other proof of negligence.” Again, in San Antonio R. Co. v. Wagner (241 U. S. 476) it was said (p. 483): “ The evidence of bad repair in the automatic equipment was not confined to the fact that the drawbar on the engine was out of line; the fact that the coupling-pin on the box car failed to drop as it should have done at the first impact, and required manipulation in preparation for the second impact, together with the fact that the drawbar on the engine was so far out of line as to require adjustment in preparation for the second impact, and the opinion evidence, being sufficient to sustain a finding that the equipment was defective.” (Italics mine.) The conclusion is properly reached upon authority that a question of fact was presented whether the Safety Appliance Act was violated in the case at bar. When, however, the negligence complained of is solely that of a violation of the Safety Appliance Act, it is important to note that the defense of contributory negligence is unavailing (Pless v. New York Central Railroad Co., 189 App. Div. 261, 263; affd., without opinion, 232 N. Y. 522; certiorari denied, sub nom. New York Central Railroad Co. v. Pless, 258 U. S. 620), or, as was said in Paynev. Connor (C. C. A. 274 Fed. 497, 501), in a case involving a question of compliance with the Safety Appliance Act, the question of contributory negligence “ would be immaterial.”
Having case such as would have permitted the jury to find that the negligence complained of was either the acts and conduct of the engineer,
I think there was error in this charge. The case was not submitted to the jury solely under the Safety Appliance Act. It was submitted upon the various issues already stated. The jury should have been told that the Federal Employers’ Liability Act (Act of April 22,1908, 35 U. S. Stat. at Large, 66, chap. 149, § 3; Barnes’ Federal Code, § 8071) provides for a diminution of damages in the jury’s assessment “ in proportion to the amount of negligence attributable to such employee.” There was nothing in the main charge that enlightened the jury on this important subject. On the contrary, they were instructed to disregard the question, of contributory negligence if they found that the plaintiff was hurt while engaged in work of an interstate commerce character. If the trial justice meant that it was only in the event that negligence was found because of a violation of the Safety Appliance Act that the question of contributory negligence should be eliminated, this should have
One other point requires notice: As already indicated in the excerpt made from the charge, the jury were told to determine whether “ compensation ” was a bar to the action. There was submitted to the jury, upon consent, a proposition whether the plaintiff had “ accepted compensation,” under the New York Workmen’s Compensation Law, “ knowing that he was receiving compensation,” in which event “ he has waived his rights under the Federal Employers’ Liábility Act, and his acceptance of such payments is a bar to any recovery here.” The so-called compensation consisted of three payments made by the defendant to the plaintiff, and aggregating $140. The jury rendered a verdict for plaintiff for $15,000 less this $140 so specifically stated. It was shown by the testimony of the representative of the defendant’s claim department that he made these three separate payments to the plaintiff, but that he did it in the course of a general practice to “ start paying compensation,” “ whenever an employee is hurt,” irrespective of any application for such compensation upon the part of the employee, and without investigation to determine whether or not the Workmen’s Compensation Law applied. The theory of the defendant is that by plaintiff’s acceptance of these sums he agreed to abide by the provisions of the Workmen’s Compensation Law
The judgment and order appealed from should be reversed upon the law and the facts, and a new trial granted, with costs to abide the event.
Kelly, P. J., Manning, Young and Lazansky, JJ., concur.
Judgment and order reversed upon the law and the facts, and new trial granted, costs to abide the event.