O'Neill v. Erie Railroad, 182 A.D. 729

O'Neill v. Erie Railroad

182 A.D. 729 | N.Y. App. Div. | 1918

Per Curiam:

This action was under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149), as the complaint sufficiently averred. Defendant’s train had been engaged in the movement of interstate freight. The freight cars had been detached and run on a side track. The caboose, with plain*730tiff within, was running alone on a descending grade, when an overtaking train collided with it, causing plaintiff’s injury. The interstate transportation was not ended merely because the cars had come within the yard. The conductor had also to deliver the way bills at defendant’s freight office, toward which he was going in the caboose, which was as much a part of the interstate transportation as was the movement across the State hue. (St. Louis & San Francisco Ry. v. Seale, 229 U. S. 156,161; New York Central R. R. v. Carr, 238 id. 260, 263.)

Under this Federal statute (35 U. S. Stat. at Large, 66, § 3), plaintiff’s contributory negligence lessens his recoverable damages, if the total damages are attributable to the faults of both the defendant employer and the plaintiff. If defendant’s negligence proximately caused the injury, but a plaintiff be also at fault, his damages are to be diminished in the proportion that the gravity of his own fault bears to the entire causal negligence attributable to both. (Second Employers’ Liability Cases, 223 U. S. 1, 50; Grand Trunk R. Co. v. Lindsay, 233 id. 42, 49; Seaboard Air Line v. Tilghman, 237 id. 499; Illinois Central R. R. Co. v. Skaggs, 240 id. 66.) This seems not to have been made clear to the jury, although plaintiff sought an instruction to that effect.

The judgment and order are, therefore, reversed, and a new trial granted, costs to abide the event.

Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.