179 N.Y. 378 | NY | 1904
This action is brought under the Employers' Liability Act (Chap. 600, Laws of 1902), the plaintiff having given the notice to the defendant required by that statute. The plaintiff's intestate was a coupler in the employ of the defendant in its yard at Rector street in the city of New York. At this point the elevated trains coming from the north were switched over to the north-bound track. An engine stood on that track ready to be attached to what had been the rear of the incoming train. When the train was brought to a stop the engine was backed down to the train and coupled with it, while the engine at the other end of the train was detached. The deceased's business was to couple the waiting engine to the train. In the performance of this duty it was necessary for him to go between the engine and the car platform, couple the drawbar on the engine to that on the car by a link and pin, connect the two pieces of vacuum hose by which the brakes are operated and fasten two safety chains from the engine to the car, one being on *381 each side of the car. At this yard one Coleman was the train dispatcher. By the rules of the company he had "charge of the yard and the sidings at stations where trains are made up, the movement of trains therein and of the yard force employed at those points" (rule 183); the enginemen were directed to obey the orders of the "train dispatcher in regard to shifting, making up trains and starting from terminals while engines are in train service" (rule 123). It was the duty of the train dispatcher to stand on the platform where he could observe the coupling of the fresh engine to the train. When that was done and the time for departure had arrived, by pressing a button he sounded an electric gong which notified the conductor and guards on the train that the train was ready to start. The signal to start was thereupon transmitted by the guards and conductor to the engineer, who would then start the train. In the ordinary operation of the road about two minutes elapsed from the time the train entered the station from the north till it started on its return trip. Coleman discharged other duties which at times required him to turn over the management and dispatch of the trains to his telegraph operator or train clerk, one Flanagan, who acted for Coleman on this occasion. Such was the ordinary course of business as it had continued for three years. On the occasion of the accident which is the subject of this suit, the plaintiff's intestate was last seen between the car and the engine, apparently about to make the coupling. Shortly after Flanagan sounded the gong for the train to move, and after the signal had been transmitted by the guards and conductor to the engineer the train started. In a very short period a cry was heard from underneath the car, the train stopped and deceased was found crushed at the rear truck of the forward car. The engineer testified that about eight seconds elapsed from the time the dispatcher sounded the gong till the train started and he heard the cry of the deceased. A witness not connected with the road says that about a second of time elapsed between the two occurrences. The engineer states that his engine moved some ten or eleven feet before *382 he stopped it. On going to the rear of his engine he found that the coupling had been completely effected. Flanagan was not put on the stand by either side. At the close of the evidence the court dismissed the complaint and this ruling has been affirmed by the Appellate Division by a divided court.
It is quite evident that there are three questions involved in this case: 1. The sufficiency of the evidence to show how the accident happened. 2. If it happened while the deceased was coupling the train or before he had withdrawn from between the car and engine to a place of safety, was Flanagan negligent in giving the signal for the train to start? 3. Was the defendant, under the statute, liable for Flanagan's negligence in this respect? As to the second question the learned Appellate Division was of opinion that if Flanagan started the train before the deceased had withdrawn from between the car and engine he was guilty of negligence, or at least the jury might so find. We think the proposition too clear to require any discussion. The third question, as to the liability of the defendant for the negligence of Flanagan, the learned court did not determine, but placed its decision affirming the nonsuit below on the ground that the plaintiff had not shown where the deceased was at the time Flanagan sounded the gong, or that he was then actually engaged in his work. It was said by the learned court: "It is as reasonable to suppose that he (deceased) had stepped back from the car, having completed his work of coupling the train with the engine, and that in some way his clothing was caught by the train, or as the train started he slipped and fell, or that he attempted to cross between the engine and the car to the platform, as it is to suppose that the starter started the train when the deceased was between the engine and the car." To this view we cannot assent. It was a question of fact for the jury to determine how the accident occurred. We concede that there must be some evidence upon which the jury can base its determination, and that determination must not be mere conjecture. But the only person with the possible exception of Flanagan *383
who knew the exact position of the deceased when the train started was the deceased himself. "If he had survived the accident it would have been necessary for him, in order to meet the burden of proof, to state what he did and what he tried to do fully and explicitly; but as he is dead less evidence is required of his personal representatives." (Schafer v. Mayor, etc., ofN Y,
It may be conceded that apart from the provisions of the Employers' Liability Act the defendant would not have been liable to its employees for the negligence of either Coleman or Flanagan. (Loughlin v. State of N.Y.,
The judgment should be reversed and a new trial granted, costs to abide the event.
O'BRIEN, BARTLETT, HAIGHT, MARTIN, VANN and WERNER, JJ., concur.
Judgment reversed, etc. *386