Klumpp v. New York Central Railroad

Headnote

Klumpp v. N. Y. Central R. R. Co., 179 App. Div. 279 , affirmed.

Appeal from a judgment of ■ the Appellate Division of the Supreme Court in the fourth judicial department, entered July 13, 1917, 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 defendant, his employer. The complaint alleged that the plaintiff was engaged in interstate commerce; that it was necessary for the train upon which the plaintiff was a brakeman to pick up a car upon the side track near the village of Angola; that the plaintiff assisted in this movement, and the engine was cut off from the main portion of the train, and the.

said car, together with several others, which were on the side track, were taken out to the main track for the purpose of making a flying switch of the said car; that plaintiff turned the switch for this movement, and that the said car was sent with considerable force against the main portion of the train which was standing on one of the main tracks; that the said car which collided with the main portion of the train did not couple automatically by impact, but started backward in the direction from which it was sent, and toward the engine and other cars which at that time were going in on the side track; that the plaintiff, when he observed that said car was backing-down and having knowledge that the lives of the crew on said engine were in danger, gave a stop signal to the engineer whose engine and cars were headed toward the side track, and that immediately thereafter his foot became caught between the guard rail and one of the rails of the track and that while in that position and while struggling to loosen himself, he continued his efforts to warn the engineer, but that said engine and cars were backed down on him and over him, causing the injuries complained of. The defense was contributory negligence and assumption of risk.