Giovio v. New York Central Railroad — 223 N.Y. 653

Majority

p. 653

Maria Francesco Giovio et al., as Administrators of the Estate of Nicholas Giovio, Deceased, Appellants, v. The New York Central Railroad Company, Respondent.

Headnote

Giovio v. N. Y. Central R. R. Co., 176 App. Div. 230 , affirmed.

(Argued April 3, 1918;

decided April 23, 1918.)

Appeal from a judgment, entered February 19, 1917, upon an order of the Appellate Division of the Supreme

p. 654

Court in the first judicial department, reversing a judgment in favor of plaintiffs entered upon a verdict and directing a dismissal of the complaint, in an action under the Federal Employers’ Liability Act to recover for the death of plaintiffs’ intestate alleged to have been occasioned through the negligence of the defendant, his employer. The intestate was killed by being crushed between the tender of a locomotive and the side of the round house door. The complaint alleged and the. proof showed that the accident was caused by the negligence of the hostler who was running the engine. The Appellate Division held that the decedent was not engaged in interstate commerce at the time of his death; the Federal Employers’ Liability Act did not govern; and consequently the fellow-servant rule applied, and the negligence of the hostler was not imputable to the defendant.

Joseph Walter Magrauth, Raymond D. Thurber and John C. Oldmixon for appellants.

William Mann and Alexander S. Lyman for respondent.

Judgment affirmed, with costs; no opinion. •

Concur: Chase, Hogan, Cabdozo, Cbane and Andbews, JJ. Dissenting: Pound, J. Not sitting: McLaughlin, J.