Schmidbauer v. New York Central Railroad

Headnote

Negligence — railroads-.— car inspector injured by being struck and run over by car.

Schmidbauer v. N. Y. Central R. R. Co., 192 App. Div. 947 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 17, 1920, unanimously affirming á judgment in favor of defendants entered upon a verdict as to defendant New York Central Railroad Company and a dismissal of the complaint by the court as to the defendant Lehigh Valley Railroad Company. The action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint sets forth two causes of action — one under the Federal Employers’ Liability Act against the defendant Lehigh Valley Railroad Company, as employer of the plaintiff; the other under the common law against the New York Central Railroad Company. The complaint alleged that while plaintiff was in the employ of the Lehigh Valley Railroad Company as a car inspector and engaged in his duties as such, and while taking the numbers of certain cars standing upon the tracks of the Lehigh Valley Railroad Company, into which an interchange switch led, the defendant New York Central Railroad Company without warning, carelessly and negligently shunted other cars into those, the numbers of which plaintiff was taking, with great force and violence, and that the defendant New York Central Railroad Company was negligent in releasing the cars so shunted from the engine at a point not visible to the plaintiff, and left the said cars moving without control and without any

person riding the said cars to control the same and that as the result of the said cars coming into contact with those upon which plaintiff was taking the numbers, caused the injuries complained of.