| NY | Feb 25, 1890
This action was brought to recover damages for a personal injury.
The plaintiff was in the employ of the Rome, Watertown and Ogdensburg Railroad Company, and, on the day of the injury, was engaged in repairing a car which was standing upon the south branch track of that company’s yard at Rome; the car stood about 417 feet west of the switch by which this track was entered, and was the second westerly car of quite a number that stood upon this branch. He was engaged on the west end of the car in turning a nut upon a bolt between the bumpers of the car, and, in doing so, supported himself with one hand hold of the bumper over the end thereof, whilst he worked a wrench with the other hand, and at this instant an unattended freight car moved down from the switch, on a slightly descending grade, colliding with the car in front of the one upon which the plaintiff was working, thus driving his car against the one in the rear, causing the bumpers to come together, which were about six inches apart, crushing his arm.
The defendant had an engine and craw under the charge of one Deming, who were engaged in picking up the "cars that were marked to go east over the defendant’s road, and, in so doing, it is claimed, on behalf of the plaintiff, that they backed down on an adjoining track, known as the “cattle track,” where they coupled onto three cars nearly opposite of the place where the plaintiff was at work; that they drew the cars east of the switch, entering the south branch, then turned the switch, uncoupled the rear car and backing up;
Upon these claims, there AAas a conflict in the evidence which the trial court submitted to the jury Avitli proper insructions, satisfactory to the parties and not excepted to. The jury found a verdict for the plaintiff, upon Avhich a judgment was entered. The trial court denied a motion for a new trial, and both such order and judgment have been affirmed by the General Term, thus Anally disposing of the questions of fact, leaving no further right of revieiv.
It Avas further claimed on the part of the plaintiff that Deming knew that the plaintiff was at work repairing the car upon the south branch; that he had called plaintiff’s attention to it that morning and asked him to repair it, so that it could be taken east upon the defendant’s road that afternoon; that plaintiff had also posted his danger flag upon the car in front of him so that it could be plainly seen from the switch, thus warning the defendant’s servants not to run cars down upon it. These claims were hotly contested upon the trial, and also became questions of fact which were submitted to and disposed of by the jury.
Under these circumstances, a motion for a non-suit Avas properly denied. The question of the defendant’s negligence became one for the jury. Assuming, as we must upon this reAdew, that the facts were as testified to by the plaintiff’s witnesses, the defendant’s conductor, Deming, was guilty of negligence in shunting an unattended freight car doAvn upon the branch track against the cars under which the plaintiff
Under the circumstances, the question of the plaintiff’s contributory negligence was also a question for the jury. He had posted his flag in the proper place; it was necessary for him to be under the car in part, in order to. make the necessary repairs. The taking hold of the bumper with one hand, for the purpose of supporting himself, whilst he worked the wrench with the other, under the peculiar circumstancs of this case, could not be said to be negligence, as a matter of law, for he had the right to suppose that the defendant’s servants would discharge their duty and would not disregard his signal flag. ¡Neither do we regard his neglect to set the brakes of the car on which he was at work, or the one in front of it, as. necessarily negligent. It is true that one of the rules of the company, for which the plaintiff was at work, required the station agent to see that the brakes were set and properly secured on cars standing at their station, so as to avoid the possibility of their being blown onto the main track. The plaintiff, however, was not the station agent; neither was it his duty to attend the switches or set the brakes upon the cars at the station. He was a car repairer. These cars stood at a. distance from the switch, on a down grade therefrom, and were in no immediate danger of being blown up grade onto the main track. Furthermore, we are not satisfied, from the evidence, that the setting of the brakes upon these cars would have prevented the accident. The bumpers were but six inches apart, and, unless the force of' the colliding car was very slight, it would have moved the .cars sufficiently,, even with the brakes set, to bring these bumpers together. It is true that the witness Wolverton, who was a brakeman in the employ of the defendant, gave it as his opinion that the cars would not have come together had the brakes been set; but this opinion was based upon no fact which made him a competent judge. He did not see the car in motion that collided with the cars on which the plaintiff was at work, for, at the time, he himself was under the car assisting the plaintiff.
The judgment should, therefore, be affirmed with costs.
All concur, except Follett, Ch. J., not sitting.
Judgment affirmed.