13 Daly 294 | New York Court of Common Pleas | 1885
This is an appeal from a judgment entered upon a verdict, and from an order denying the motion, upon the minutes, to set aside the verdict and grant a new trial.
On the morning of the 22d day of December, 1882, the intestate and one Catharine Harold, who was also employed as a cleaner by the Wagner Car Company, left a car upon which they had been at work on the west side of the yard and were going to a car which they had been directed to clean on the east side of the yard. The morning was very foggy and there were engines in the yard which were emitting smoke and steam. It appeared' that many trains pass in and out of the Grand Central Depot and that switch engines are at all times employed in the yard for moving the cars to and fro. On the morning in question an empty baggage car was standing under the Forty-fifth street bridge. The brakeman testified that he left the car there at about halfpast nine, thoroughly braked up, and that the brakes were in good order. The space between the north end of the depot' and the south end of this car was left so that exjuess wagons could come in through the gate and for whatever traffic there was on that passage. While this baggage car was standing under the bridge three ears belonging to the Tarrytown train were hauled as far north as Fifty-first street and were switched in on the track upon which the baggage car was. They were then backed by the.engine as far as Forty-eighth street and there “kicked ” off and left to go south by their own momentum. There was a brakeman on the southerly end of the car nearest the depot.
The court, upon the evidence presented, was justified in submitting to the jury the questions of negligence and contributory negligence, and the motion to dismiss the complaint was properly refused.
The lawful right of the deceased to be upon the track of the defendant at the place where the accident happened is beyond question. She was employed by the Wagner Car Company to clean their drawing-room cars, which were used in the business of the defendant, and which were kept, when not in use, in the defendant’s yards adjoining its depot. For the purpose of performing her duty it was necessary for her to be in the depot yard and to cross the defendant’s tracks. She was directed by Fifield, the agent of the Wagner Car Company, to go from one part of the yard to another, wherever there was a car to be cleaned.
It must be assumed, under the circumstances, that the deceased was not a bare licensee, but was upon the track by the express permission of the defendant for the purpose of following her lawful pursuit. This being so, the defendant had, in respect to her, a clear legal duty to perform in the management of its cars; which duty was to exercise reasonable care in their movements so as to do her no injury by negligence. So long as it permitted these employes of
The negligence of the defendant is predicated upon the conduct of the brakeman on the Tarrytown cars—whether he managed them in the ordinary and usual mode in which the business of the company was transacted in those yards, or whether he managed them carelessly and negligently, so that danger to the deceased was the reasonable result. There was evidence tending to show that there must have been some neglect on the part of the brakeman Bessemer in the management of these cars. There is testimony to show that the baggage car must have been struck with unusual force ; one witness testifying that during Iris period of service in the yard he never once saw a car struck with force sufficient to move it as the plaintiff claims this car was moved. And yet the brakeman, as he testifies, had the cars under complete control. This bears upon the question whether the brakeman was managing the cars with the care he ought to have taken, considering the time, place, condition of the atmosphere, and the persons whose duty called them upon the track, and was sufficient to justify the submission to the jury of the question of the defendant’s negligence.
It is insisted by the appellant that there was contributory negligence on the part of the deceased. It is true that, she had knowledge of the defendant’s manner of doing business, and the movement of cars without signals or watchmen, and that she had been told that it was a dangerous place, and that she would have to be careful about crossing the tracks and getting around, as she had a great many tracks to cross and the "cars were liable to be coupled together, and she would have to look out for herself. But
The defendant excepted to the refusal of the court to allow the witness Ward to testify whether or not all persons employed about the yard, including the employes of the Wagner Company, to his knowledge, were notified that they must look out for themselves with respect to their movements and the movement of the cars. It was already in proof that the deceased, upon entering the employment of the Wagner Car Company, had been notified personally that the yard was a dangerous place, and that she must look out for herself. To prove, a general notification by the defendant to the persons employed in the yard to the same effect, could not have benefited the defendant, or, I think, changed the finding of the'jury on the subject of contributory negligence, to which, if admissible, it related.
Exception was also taken to the admission of the following questions:
Q. “It has been testified by Mr. Ward that it is a usual thing in that yard, in switching cars, to strike a stationary car and drive it ahead sometimes a car length, sometimes three feet, and that that occurred there very frequently;
The evidence called for by these questions was competent to contradict the witness Ward, who had testified in reference to the collision of cars in the yard, and as to the distance they were driven by such collisions.
An exception was taken to the following instruction to the jury in the charge of the court: “ The plaintiff claims the negligence of the brakeman to have consisted in allowing the three cars to come southward on the track at an unusual rate of speed, sufficient, when the collision with the baggage car took place, to send the baggage car southward far enough to reach the deceased, and to inflict upon her the injuries of which she died. Was that so? Whether it was or Avas not an unusual and dangerous change, so to speak, in the manner of transacting business, is for your decision.” This was objected to on the ground that it assumed that the speed of the cars was unusual, while there was no evidence to that effect. The exception is not well takep. The proof Avas that the baggage car was driven a distance of ten feet at least; and there is testimony that this is an unusual distance. This warrants the inference that the speed of the cars was an unusual one.
The case was submitted to the jury in a charge that was particularly favorable to the defendant, and it does not appear that any error was committed.
The judgment should be affirmed.
Charles P. Daly, Ch. J., concurred.
Judgment affirmed.