Wenzel v. Patrick Ryan Construction Corp.

Headnote

Wensel v. Ryan Construction Co., 169 App. Div. 357 , affirmed.

Appeal from a judgment, entered October 18, 1915, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of the defendant, his employer. Defendant was a contractor doing certain concrete work upon a bridge across the East river and moved its material over a narrow gauge railway. Plaintiff, a brakeman in its employ, was caught between two cars and received injuries resulting in his

death. The Appellate Division held that the evidence conclusively established that it was not only unnecessary for the decedent to have remained between the cars when directing the engineer to back up, but exceedingly and manifestly careless; that if the conditions and manner of operating the train were such as to charge the defendant with negligence in furnishing a chain and directing its use to couple the cars, the decedent was plainly guilty of contributory negligence, for he possessed all the knowledge that his employer had.