McCue v. Brooklyn Heights Railroad

of it. He says that he then put the controller on in order to move it this short distance, intending to jerk the controller off, but for some reason he was unable to do so, and the sand car struck the car in front, knocked the controller handle off, and as it was pushing the cars ahead of it he pulled the pole down from the trolley wire and stopped it. There is no evidence that his inability to remove the controller handle was due to any defect. On the contrary, the evidence is undisputed that after the accident the car was examined and everything about its appliances found to be in good working order. Holzsky jumped off the car, saw plaintiff standing there, and says that he intended to ask him for a pair of handles which he had in his hand, to cut the power off, but because McOue reproved him for moving the car he became frightened and ran to find Moore, the depot superintendent. He told him that the car had run away, but gave him no explanation as to the cause thereof, and it was not until the next morning that he made any statement to any one about having any trouble with the controller handle. As a result of the collision four or five cars had been pushed some considerable distance, the forward end of one of the cars breaking through a partition into the adjoining stockroom. According to plaintiff’s evidence, Moore came out to see what the difficulty was, and, after he had looked at the cars, said to him: “Mike, put on the pole and run this car back there till I see the amount of damage that is done.” Plaintiff admits that he knew of the fact of the collision; that he did not ask Holzsky what had caused it; did not get upon the car to see what the trouble was or do anything to ascertain the condition of the car. He stepped between the cars and put the pole on the wire. The power was on, and as a result the ears were moved together and he was crushed. Plaintiff admits that when he went between these cars he did not know whether the power was on or off, and that he could have put the trolley pole on by standing on the back platform or on the bumper. It is true that he says that the last was a dangerous place upon which to stand. If that is so, the position between the cars was still more dangerous. Plaintiff says that he noticed before he placed the pole on the wire that there was no controller handle on the car, and at that time he had one in his hand which would have fitted it. He admits that if he had gone on the platform of the ear he could have told in an instant whether the power was on or off. If we assume, for the sake of the argument, that the notice under the Employers’ Liability Act^[1] was sufficient; and if we assume, for the sake of the argument, that Moore’s direction to him was an act of superintendence, if we assume for like purpose that section 42a of the Railroad Law^[2] applies, so that Moore was a vice-principal, still plaintiff has not made out his case. Moore gave no directions to him as to how he was to put this pole on. He simply told him to do the act. Plaintiff selected his own method of doing it, and it proved to be a dangerous one. Viewed as a common-law action