136 N.Y. 77 | NY | 1892
The plaintiff’s intestate at the time of the accident which caused his death, was engaged in his duty of inspecting cars upon a track of the defendant- in the city of Hew York, used in part for the storing of cars awaiting inspection. While he was engaged in this business other employees of the defendant, under the direction of a yardmaster, were engaged in drawing out cars from another track, two or three at a time, and shunting them on to the track on which the cars stood which were being inspected by the intestate. The inspection was made by two inspectors, one passing on each side of the cars and making the necessary observations. The intestate and his co-employee discovered that one of the bumpers between the first and second cars from the end of the line in the direction from whicli the shunted cars came was out of order, and the intestate passed between the two cars and stood between the bumpers with a memorandum book in his hand. At that moment two cars were shunted upon the track and collided with the cars which were being inspected by the intestate, and he was crushed between the bumpers and soon afterwards died. The complaint charges that it was the duty of the defendant “ to have flagmen upon the freight cars attached to the engine when in motion to signal to the operator of the engine of any obstruction,” and the failure to perform this duty is made by the complaint the gravamen of the action.
The proof took a somewhat wider scope, and it was claimed on the trial that proper and reasonable care required that
We think the motion made on the whole case should have-been granted, for the reason that the evidence did not disclose any omission of duty by the defendant, which, under the law of master and servant, made it responsible for the negligence-which caused the death of the intestate. That the shunting of the two cars upon the track on which the intestate was engaged in discharging the duty of inspector, and permitting them to come in contact with the stationary cars, was gross negligence,' seems to admit of no ' doubt. It is. assumed that if there had been a brakeman upon the moving cars, and he had discharged his duty, the collision might have been prevented. While the preponderance of evidence supports the claim of the defendant that there was a brakeman on the cars, there was probably sufficient in the evidence given in behalf of the plaintiff to require the submission of the question to the jury, and it was found by the jury in favor of the contention of the plaintiff.
We think the master’s duty was fully discharged in this ease when these things had been done, and that the failure of the brakeman to be at his post was the negligence of a co-servant of the intestate, for which the master is not responsible. In the Flike case (53 N. Y. 549) it was held that it was the duty of a railroad company to man its trains with a sufficient number of brakemen, and that sending out a train with an insufficient number was a violation of the master’s duty, and that it was no excuse for a failure to have a sufficient number on the train, that the company employed a sufficient number, and that one of the brakemen so employed had overslept himself, and for that reason did not appear. In this case the casualty resulted from the negligent omission of the brakeman to take his proper position on the top of the moving cars. If in the Flilce case the accident had been occasioned by
We think the judgment should be reversed and a new trial ordered..
All concur.
Judgment reversed.