4 N.Y.S. 381 | N.Y. Sup. Ct. | 1889
The deceased was a brakeman on the Long Island Railroad. There are four low bridges near Jamaica, in Queens county. Early on the morning of the 4th of April, 1887, and while it was very dark, the deceased, while engaged in his employment as brakeman on the top of his car, was killed. There are four low bridges in close proximity. The defendant had erected warning signals about 100 feet from the east side of the east bridge and about the same distance from the west side of the western bridge, and none for the two intervening bridges. The train was going east when the accident occurred. The deceased passed through 'the western bridge safely, but was killed by the second bridge. Assuming the utmost extent of liability to be imposed by chapter 439, Laws 1884, and that they were bound to erect these warning signals at each bridge, there is no right of action for the injury. It was a risk assumed by the efnploye. He had passed these bridges for three months, and the case fully shows that it was understood by the employes that these bridges had warning signals at each end of the four bridges, and that these signals were a warning for all the bridges. Hannigan and Hayes, the two brakemen called by the plaintiff, so testify. The warnings were apparent, and the deceased must take the risk of an omission of the same. De Forest v. Jewett, 88 N. Y. 264. Gibson v. Railroad Co., 68 N. Y. 448. The complaint should have been dismissed. Judgment reversed, and a new trial granted, costs to abide event. All concur.
