Middlebrook v. Boston & Maine Railroad

Headnote

Middlebrook v. Boston & Maine R. R., 167 App. Div. 944 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 4, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action under the Federal Employers’ Liability Act to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant. The plaintiff, who was the yard conductor or conductor of the switcher crew working in the west yard at East Deerfield was riding on the east end of a coal car that was being pushed along track No. 6 in an easterly direction when this east end of the coal tar fouled or sideswiped cars standing at the east end of track No. 7. The coal car on which plaintiff was riding was forced over against a car standing on track No. 5, and while plaintiff was attempting to alight his leg was caught between the car and a car standing on No. 5 and he received the injuries complained of. At the conclusion of the evidence the defendant moved for a nonsuit and a dismissal of the plaintiff’s complaint upon the ground that it appeared affirmatively that the plaintiff’s injuries were received because of his own negligence and not because of any negligence on the part of the defendant; that the plaintiff was injured because of one of the risks incident to the plaintiff’s employment and, therefore, assumed by him, and that the car which was left fouling track 6 was left there by the plaintiff himself; that he was in complete control of the yard and that it was his duty, as admitted by himself, to see that the cars on the one track did not foul the others.