227 A.D. 269 | N.Y. App. Div. | 1929
Lead Opinion
Smith was a brakeman and flagman employed by the defendant and was killed on December 8, 1927, while engaged in the performance of his duties in interstate commerce. It is alleged that he met his death because of the negligence of servants of the defendant, and plaintiff is entitled to recover under the provisions of the Federal Employers’ Liability Act.
At Howe’s Cave, during the switching operations, the caboose was left on the south-bound track, and at times other cars were also standing on this track. No flagman was sent to the south at this time, so it may be assumed that Smith, who had been familiar with the usual procedure for about four months, had no reason to anticipate danger from that direction. His vigilance was naturally directed to the north to prevent a collision with a train coming from that direction.
Shortly after the train reached Howe’s Cave, but after Smith had departed for his position, the conductor called the train dis
North of the station there was a sharp curve with high banks, so that Smith could not see the approaching train until it was almost upon him. The headlight and the whistle signals would give him no sufficient warning because he was expecting the train to pass on the other track. The result was he was struck and killed while walking north on the south-bound track, carrying a lantern.
As a nonsuit was granted, we have stated the facts most favorably to appellant. All these circumstances may as a question of fact indicate a neglect of duty in failing to exercise due care and to give some notice or warning to one unaware of an impending danger. A somewhat similar case is that of Alouro v. Syracuse, Binghamton & New York R. R. Co. (133 App. Div. 934, no opinion). In that case men were at work shoveling out switches near the station after dark in a snow storm. The railroad company shifted a north-bound train to the south-bound track; and when it
The question of contributory negligence of the decedent was one of fact. (DiSario v. N. Y., O. & W. R. Co., 142 App. Div. 159; Sullivan v. New York, N. H. & H. R. Co., 73 Conn. 203; Louisville & N. R. R. Co. v. Trisler, 140 Ky. 447.) The night was dark, cold and windy. It appears that during his four months’ service, Smith had not known of such an unusual movement of this train. “ He was not bound as matter of law to do any specific thing to discover what he had no reason to expect. * * * However he came to be where he was, he had a right to be there and the defendant had no right to run him down.” (Lamb v. Union R. Co., 125 App. Div. 286, 289, 290; revd. on other grounds, 195 N. Y. 260.) (See, also, Beecher v. Long Island R. R. Co., 35 App. Div. 292; affd., 161 N. Y. 222.)
We cannot reinstate the verdict for the reason that the law of the case as charged would not permit recovery on any rational theory.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Whitmyer and Hill, JJ., concur; Van Kirk, P. J., concurs in the result, with a memorandum in which Hinman, J., concurs.
See 35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id, 292, chap. 143; now U. S. Code, tit. 45, §§ 51-59.— [Rep.
Concurrence Opinion
(concurring). If there is a question of fact it is, whether the conductor of the pick-up train ought to have realized that plaintiff was subjected to an unusual and extraordinary danger because the passenger train was to run north against traffic and should have warned plaintiff.
Hinman J., concurs.
Judgment and order reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event.