Kinney v. New York Central & Hudson River Railroad

Headnote

Negligence — railroads — injury to locomotive engineer through collision — contributory negligence — assumption of risk — negligence of fellow-servant — Federal Employers’ Liability Act — Statute of Limitations.

Kinney v. N. Y. C. & H. R. R. R. Co., 190 App. Div. 967 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial

department, entered February 4, 1920, 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, a locomotive engineer, was operating an engine moving freight cars in yard service and while so engaged received the injuries complained of by reason of a collision between his engine and the engine of a passenger train. It was alleged that at the time of the accident plaintiff was engaged in interstate commerce. The defendant’s amended answer to the amended complaint denied the material allegations thereof, denied that the plaintiff and defendant at the time of the accident were engaged in interstate commerce or were subject to the provisions of the Employers’ Liability Act, and set up as separate and distinct defenses contributory negligence, negligence of a fellow-servant and the assumption of risk, and also a second separate defense that the cause of action under the Federal statute was not pleaded or commenced for more than two years after the accrual of the cause of action, and v/as, therefore, barred by the statute of limitations contained in said Federal act.