28 N.Y.S. 298 | N.Y. Sup. Ct. | 1894
The action was to recover damages for the death of the plaintiff’s intestate, William H. McGucken, due, as alleged, to the negligence of the defendant. The deceased was, and had been for about a year and a half, in the employ of the defendant as a “wiper” in the engine house at Rochester. The men so employed are sometimes called “hostlers,” and their duty, as the name imports, is to take care of the locomotive engines when housed between trips, to wipe the machinery, bank the fires, and keep up the necessary supply of water in the boilers, so that the engines • may be ready for immediate service when required. On the day of his death, McGucken was directed by his foreman to go to-Portage, to take care that night of engine ¡No. 91, in place of a wiper at the engine house at that station, who had been taken sick. For that purpose he was furnished with an employe’s pass, which entitled him to ride free on the passenger train which was to be drawn to Portage by the same engine, ¡No. 91. In pursuance of his orders, he took his seat in one of the passenger cars of the train, and rode to ¡Nunda, the last station on the road before reaching Portage. There he left the passenger car, and, without orders, or invitation from the engineer, took a seat in the cab of the engine, on the fireman’s side of the boiler. The engineer, discovering his presence after the train was on its way to Portage, asked him what he was there for, and told him it was no place for him; but, learning that he was going to take care of the engine that night, told the fireman that, since he was there, he had better show him how the injector worked, which he did. Shortly before the train reached Portage it collided with a freight train going in the other direction. The engine of the passenger train was overturned, and the plaintiff’s intestate was crushed beneath it, and killed. ¡No-other car of the train was overturned or thrown from the track, and no one in either of the passenger cars was injured. A rule of the company, which had been in force for several years, and was duly promulgated, forbade any person to ride on the engine without an order from the superintendent, except the engineman, fireman, assistant engineer, and supervisors on their respective divisions, and conductors in the discharge of their duty. The collision was due to a mistake in the transmission of orders for the movement of the trains, and it may be conceded, for the purposes of this review, that the fault was attributable to the defendant, and that the fact of negligence on its part was established; but it is still impossible that the plaintiff’s recovery should be sustained, for the reason that the undisputed evidence shows a disobedience of orders and violation of duty on the part of the deceased, without which the