60 N.Y.S. 422 | N.Y. App. Div. | 1899
The action is to recover damages for. injuries alleged to have been sustained by reason of the negligence of the defendant. There is no dispute in the testimony as to how the accident occurred. Briefly stated, it appears that the plaintiff, on the 1st day of August, 189Y, was employed upon a train of the- defendant, which was being-loaded with slag, at a point on the road called crusher switch, and hauling the material when loaded to its destination. Upon the switch at the time when the train was run in were three or four cars, and one, a gondola car, constituted the extreme rear end of the train. The plaintiff,- in the performance .of his duties as a brakeman, set the brake upon this car, and at that time the appliance
The defendant charged that the plaintiff was guilty of contributory negligence in failing to make an inspection of the brake staff and discovering its defective condition. In order to lay the foundation for the charge of contributory negligence, the defendant established that the plaintiff was familiar with the following rule, and had it in his possession :
“ It is the duty of brakemen to make couplings; attend to the brakes; be provided with and properly display train signals; and assist the conductor in loading and unloading freight; in inspecting the cars, and in all things necessary for the prompt and safe movement of the train.
“ They must examine and know for themselves that the coupling apparatus, drawheads,- drawbars, brakes, brake shafts and attachments, ladders, running boards, steps, hand holds, and other parts and 'mechanical appliances which they are to use, are in safe and proper condition; if not, report them to the conductor, and have them put in order before using.”
Similar rules have been the subject of judicial examination several times, and the courts have announced that they are to be reasonably construed in view of the circumstances of the case. It is quite evident that the measure of obligation which is imposed upon an employee of this character by virtue of this rule is much less
It is claimed, however, that error was committed in admitting evidence of a permanent disorder of the plaintiff’s heart. There is no doubt but that the testimony of the physicians Avas sufficient to connect the heart trouble Avith the injuries received, so that no difficulty is experienced in this regard. So far as the averments of the complaint are concerned, we think they were broad enough to admit this testimony' as an element for consideration. The averment of the particular in j ury is to the head, side and ribs of the plaintiff to such an extent as renders him unfit to perform the duties he had previously performed, which condition will be per
Judgment and order unanimously affirmed, with costs.