112 N.Y.S. 872 | N.Y. App. Div. | 1908
The judgment should be affirmed, with costs.
The action was brought to recover damages for personal injuries, alleged to have been caused by the defendant’s negligence.
The ease when first tried resulted in a verdict for the plaintiff. There-was an affirmance in the Appellate Division (112 App. Div 904), but a reversal' in the Court of Appeals. (189 N. Y. 474.) The action was one at common law. ■ Plaintiff was an engineer, and was running a fast train -west bound. When approaching the De Witt yard near Syracuse, the train came upon a switch set for a crossover instead of the main track, and, taking the crossover, was derailed, and the plaintiff was injured.
Upon the first trial the ground of negligence submitted to the jury was that the defendant failed to enact and promulgate rules with reference to the care and operation of the switch, so as properly to protect trains passing it on the main track. The Court of Appeals held there was an entire failure of proof as to this ground of negligence.
On the second trial, which we are here reviewing, the ground of negligence urged was that the. defendant improperly placed the semaphore so that it could not be seen by the engineer in .time to stop his train. It was 459 feet from the switch, and could be seen not to exceed 400 feet before reaching it,, which would be 859 feet before arriving at the switch, and it was claimed that it required at least 1,400 feet to stop this train going at the rate of speed it was required to go upon the track which was wet and slippery at the time of the accident. It will be remembered that • the accident occurred in September, 1901, more than seven years ago, and the defendant claims there was no proof in the case upon which the jury could charge the defendant with the duty at that time of having any semaphore at all to. protect this switch, no evidence that they were in use on other roads, nor that they were located further from the switch on any road than the one in question. There seems to have been a defect in the proof in this regard, and it may well be that a finding by the jury of negligence on that, ground would not be authorized. But the court did not consider this question or non-suit upon this ground. The decision was based upon the assumption of risk by the plaintiff, and it seems to me the concia
The doctrine of assumed risks resté upon the implication of a promise by the employee to waive the consequences of dangers of which he is fully aware.”
In Rice v. Eureka Paper Go. (174 N. Y. 385) it was said, after reviewing the facts: “ Upon these facts two propositions are so clearly established that they are practically conceded. ' The first
These two cases illustrate the rule beyond any question and leave us no reason to misunderstand it. There are no cases laying down any contrary rule when correctly understood.
The only question remaining here is whether, under the evidence, there was any question of fact for the jury. The evidence given upon this question was mainly, if not entirely, that of the plaintiff himself on direct and cross-examination. ,It seems to me to be susceptible of but one conclusion, the assumption of the risk of the semaphore, located where it was.
I think the judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.
See Laws of 1906, chap. 657, adding to Railroad Law (Laws of 1890, chap. 565), § 42a ; Laws of 1902, chap. 600.— [Rep.