18 N.Y.S. 768 | Superior Court of Buffalo | 1892
I am not prepared to give assent to the conclusion reached by my associate upon this motion, that the court, in sustaining the plaintiff’s exceptions, assumed a rule of law in conflict with established authority regulating the relation and liability between master and servant, and of servants to each other. On the contrary, I think the rule of law announced by JudgeBeckwith in deciding this case, as applicable to the facts disclosed by the record in relation to those questions, expresses the correct rule of law. It is-much more difficult to find evidence connecting the cause of the accident with the negligence of the defendant; however, the conclusion is reached that this-may be done. It appears from every witness who spoke upon the subject, that upon this night there was a heavy frost; that this produced a bad, slippery rail; that it was much more difficult to set brakes under such conditions than if the rail had been dry, by reason of which the holding power of the brake was perceptibly reduced. It is also in evidence that oil was. found upon the brake shoes, which would materially lessen the friction and grip of the brake. A greased brake shoe, it is not strained to say, constitutes a defect in the brake; for there can be no difference between a brake-shoe rendered wholly or partially useless by grease, and one which, from a. defective chain or other cause, prevents its coming firmly against the wheel.. The object sought .is to create friction, and resist the motion of the wheel,, and whatever lessens its power in this respect, to the extent it is lessened, creates a defect. An examination of the cars not broken up, made after the-accident, showed the brakes upon them set. The conductor had given to the brakemen all necessary instructions, and saw that they were properly carried out; for he states that he knew the brakes were set, as they left the top of the grade, “by the way the train tipped over the hill,-” and also from seeing the lights moving upon the cars when he found the train was running too-fast, and went upon the top to make an observation and set the brakes. From this testimony the jury would have the right to draw the inference that the-brakemen were promptly and properly performing the duties devolving upon them, so far as in their power.
It is further insisted that the court overlooked the question that deceased, by continuing in defendant’s employ with knowledge of defendant’s method, of operating its trains over Keating mountain, as provided by its rules and. orders, assumed the risks attendant thereon. If the greased brakes are to be considered as a defect in the brake,—and I think they may be,—it is quite-
Upon all the facts of the case the conclusion is reached that the jury would have been authorized in finding negligence upon the part of the defendant in attempting to take the train down the mountain under the existing circumstances and conditions; that thereby control was lost of the train by reason of the condition of the track, and insufficient and defective brake power producing the accident and injury complained of. These views lead to a denial of the motion for a reargument.
If the motion for a reargument is to prevail, it must be upon the sole ground that the order of the general term, granting a new trial, is in conflict with a controlling decision upon the question as to the relation which existed between the conductor of the train of cars upon which the deceased lost his life and the deceased, who was at the time a brakeman upon the same train. The theory of the plaintiff upon the trial, and that adopted by the court in ordering a new trial, was that the evidence given would have justified the jury in finding that the injury complained of was caused by the failure of the conductor in charge of the train to select and make use of the proper means and appliances for safely moving the train over Keating mountain. As the record stands, it must be assumed that by dividing the train and moving it in sections, or by enlisting more help in the work of handling it, it might have been taken over with safety. At any rate, there is no evidence that it could not have been. The means and appliances to do the work with safety were supplied by the defendant, but the manner or mode of ad