Funaro v. Boston & Maine Railroad

Headnote

Negligence — railroads — injury to employee from negligent operation of gasoline work car.

Funaro v. Boston & Maine R. R., 186 App. Div. 916 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 25, 1918, modifying and affirming as modified 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 negligence on the part of the defendant’s foreman, who was operating a gasoline car upon the defendant’s tracks, “ in failing to slow down and to stop said gasoline car when there was a large dog upon the track ahead,” and “ in wilfully and wantonly running over said dog, knowing that the said gasoline car would in all probability jump the track, thereby endangering the life and limb of the plaintiff arid other employees upon said car,” and “ in failing to shut off the gas of said car after being warned of the presence of said dog upon the track ahead and in refusing to shut off the power on said car, although a collision with said dog was inevitable if said gasoline car continued its speed.” The answer denied the above allegations and set up as defenses contributory negligence and assumption of risk.