17 N.Y.S. 302 | N.Y. Sup. Ct. | 1892
The action is to recover damages for a bodily injury sustained by the plaintiff by reason of alleged negligence of the defendant. The plaintiff was in the employ of a firm of coal dealers in Lockport, as a driver, and at the time of the accident was engaged in hauling coal from the yard of the defendant. The coal was shoveled into his wagons from a car standing on the track by another laborer employed by the coal dealers. On one of his return trips to the railroad yard the plaintiff was directed by one of his employers to see how much coal was left in the car, and bring him word. Having reached the yard, and changed his horse from the empty wagon to the loaded one, he went to the end of the car, and climbed up onto the projecting timbers, or what he calls the “platform,” of the car, and was attempting to pass around the brake which stood at the corner where he got up, when other cars, being moved on the same track, came in contact with the car on which he stood, and his foot was caught between the bumpers, and the injury was
We think the exception was well taken, upon all or upon either of the grounds stated for the motion. It was not shown that the defendant, or any of its servants engaged in the management and movement of its cars, had any notice or reason to suppose that the plaintiff was or was likely to be on the outside of the car, or in a position to be injured by the contact of other cars with the one being unloaded. They were, no doubt, chargeable with notice that a man was engaged in shoveling coal from the car, and they were bound to use reasonable care not to move their cars in such a way as to endanger his safety; and so it seems they did. The man in the car is not shown to have been in any way disturbed or inconvenienced. The adventure of the plaintiff in climbing up on the end of the car was no part of the operation of unloading the coal, and the information which he sought to obtain for his employer might, it would seem, have been as readily obtained by inspection from either his empty or his loaded wagon, both of which were placed close to the side of the car, as from the precarious footing on the end of the car itself. It may be conceded that he was guilty of no wrong or trespass in climbing upon the car; but even then, in the absence of notice to the defendant that he had or was likely to have done so, he did it at his own risk of the dangers incident to such an undertaking. Under those circumstances, it is impossible to see that the defendant owed to the plaintiff the duty of even ordinary care in the movement of their cars; but, if such were required, there is nothing to show that it was omitted on the occasion of this accident. There is no evidence tending to show that the moving cars were brought to-their position in any other but the most careful and usual manner. The jar of the contact was not shown to have been violent. As has been said, it did not disturb the man who was at work on the car; nor did it have the effect to dislodge the plaintiff from his position, but only to induce an effort on his part to obtain a better footing. It was in the attempt to do so that he stepped upon the bumpers of the two cars when in contact, and when, as he testifies, they were momentarily separated, his heel slipped between them, and was caught when they came together a second time. Indeed, it is not really contended that the defendant was guilty of any negligence except in the failure to give notice to the plaintiff of the approach of the moving cars. But there is no evidence of the omission of any of the ordinary signals of the moving of trains or of cars in the yard, and it would be unreasonable to-require an individual warning to a person whose presence in a position of danger the defendant had no reason to anticipate. So that the whole question of the defendant’s negligence resolves itself, as we think, into the inquiry already discussed, whether the defendant was bound to take notice that the plaintiff, or some other person, had the right to be, and was likely to be, in the position of danger described.
We are much inclined to the opinion that the plaintiff’s testimony fails to exculpate him from the charge of contributory negligence; but it is possible