Galvin v. New York Central & Hudson River Railroad

Headnote

Galvin v. N. Y.. C. & H. R. R. R. Co., 167 App. Div. 934 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 27, 1915, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. Plaintiff was a conductor in charge of a construction train belonging to a contractor. Upon each of the cars of the construction train there was located a grab iron on the side and also an

iron step in the shape of the letter L. It had been the' custom according to the evidence of all the employees in getting on and off this train to use the grab iron and the foot step. At the time the plaintiff was injured while the construction train was moving slowly he attempted- to get upon it, and caught a truss rod on the side of the car and swung up and reached for the grab iron at the same time placing his foot upon the step; the grab iron was missing and the bolt on the step had loosened so that the step gave way downward, causing the plaintiff to slip off the step and loosened his hold on the truss rod throwing him upon the tracks, resulting in the injuries complained of. Defendant contended that in law the plaintiff was not a railroad employee; that in law he assumed the risk of the absence of the hand hold; that in law he was guilty of contributory negligence in getting on the car without determining whether the hand hold was there or hot and that the defect was due to the nature and changing character of the work.