McCoy v. New York Cent. & H. R. R.

The action1 has been twice -tried. Upon the first trial a nonsuit was granted at the close of plaintiff’s case. Plaintiff made a motion for a new trial, which was directed to be heard at the Appellate Division in the first instance. This court unanimously overruled the plaintiff’s exceptions and denied his motion for a new

The material facts are not very much in dispute. The plaintiff at the time in question was employed by the defendant as a- hoer of ashes, from engines. It appears that in the yard of the defendant,' when it was desired to clean an engine, a hostler would run the engine onto a track, there being at the time, no ashpits in the yard and a hoer would tiren be ordered to go under the engine. The-hostler would dump or shake the ashes into the ashpan below, and it was the duty of the hoer to hoe them out onto the track; he being under the engine upon his knees.' It was the custom, which had been established between the hoer and the hostler, that, when the hostler had finished shaking down the ashes into the ashpan, he would ring the bell to inform the hoer of that fact; that, when the hoer had removed.all the ashes from the ashpan, he would crawl out from under the engine, would then say to the hostler, “All right,” which indicated that he had gotten out from under the engine, or would show himself to the hostler at the" cab; and the hostler was then free to move the engine as he desired. This had been the manner or custom of performing this work during all the time the plaintiff was in defendant’s employ. On the. evening in question, it being then somewhat dark, and there being several engines in the yard and about the engine in question, which were making more or less noise, the plaintiff went under an engine, which was in charge of a hostler by the name of Lyon, to rake out the ashes in the ordinary way. Lyon gave the signal indicating that he had dumped the engine and shaken the ashes into the ashpan, and after the plaintiff had raked out the' ashes he started to crawl out between the wheels of the engine, and while thus getting out Lyon started the engine; and the wheel ran over the plaintiff’s leg, injuring it in such manner as that it had to be amputated between the ankle and the knee. The plaintiff at the time in question gave no signal to the hostler that he had gotten out from under the engine. He did not say, “All right,” and did not show himself at the cab.

These are the" facts, in a general way and so far as important to note, which were established by the plaintiff upon this trial and which were proven upon the previous trial; the evidence in the two records being

‘•In the case before us we have a state of facts differing in many particulars from those presented in any of the cases cited. It is obvious that the physical conditions surrounding the plaintiff when engaged in his work exposed him to great peril. As before pointed out, the mode of procedure adopted by the men was that, when all the ashes were shaken down, the hostler would announce the fact verbally or by ringing the bell of the engine. Thereupon the hoer, after finishing the work, would remove his tools and himself to a place of safety and announce the fact to the hostler, by calling out ‘All right,’ or exhibiting himself in person. In view of the great peril surrounding this work, a rule promulgated by the company might be well printed among its general rules, requiring the hoer to reach a place of safety in sight of the hostler. The confusion and noise existing in a railroad yard, where engines, and cars are in almost constant motion and steam escaping to a greater or less extent, renders it hazardous to trust to the calling out of the hoer that he has reached a place of safety. The hostler might be misled by the noise and confusion, and mistakenly assume that he had heard the voice of his associate. We are of opinion that it was a question of fact for the jury as to the duty of the defendant to have promulgated a written rule, in view of the dangerous surroundings of the work of hoers of ashes and cinders underneath engines, and whether its failure to do so was negligence, rendering it liable to the plaintiff in damages for the injuries he sustained.”

The language quoted, which practically embodies the decision of the court, applies with equal force to the situation and facts as described by plaintiff’s witnesses upon this trial. The defendant, however, called a witness, George Colburn, who was engine dispatcher, and who was the superior officer of the hostler, and he testified in answer to the question:

‘•Tell us what instructions, if any, you gave to the hostlers with reference to cleaning out locomotives when the hoers were underneath? A. The instructions given were a general instruction to the men in that employment. The hostlers were to satisfy themselves that the engine hoers were out from under any engine, and that they knew it before they start the engine. I gave such instructions to the hostlers.”

And it also appeared by testimony offered on behalf of the defendant that a practice had been adopted of signaling between the hoer and the hostler practically as testified to by the witnesses called on behalf of the plaintiff. There is no evidence on the part of the defendant tending to show that any particular rule had been promulgated as to the manner in which the hostler should, satisfy himself that the men were out from under the locomotive and safe, but the men of their own accord adopted the practice or custom above indicated. It does not seem to me that the fact that the engine dispatcher gave the instructions which he testifies he did to the hostlers meets the criticism made by Judg'e Bartlett in his opinion delivered upon the former appeal. The effect of the holding in that case is that the defendant was required to have promulgated a written rule which should emphasize, as it were, the importance of seeing to it that no one was under the engine when started. I fail to see how the evidence of Colburn changes in the slightest degree the case from what it was upon the former appeal.

Eyon, the hostler, who was called as a witness by the defendant, also testified in substance that he knew the plaintiff was under the en

It is also urged that the verdict is excessive, and that for that reason a new trial should be granted. An extended discussion of the proposition cannot be useful, because the facts are plain and undisputed. At the time of the accident plaintiff was 45 years of age. His health prior thereto had always been good. He was able to do all kinds of manual labor. He weighed about 165 pounds. His leg was amputated half way between the foot and the knee. He was at the hospital seven weeks. He says that he suffered great pain; that he had many bed sores. He says that after the stump of the leg healed it continued to cause him great pain, and so continues up to the present time, and that he had difficulty in wearing an artificial limb. It does not seem to me, under such circumstances, that it can be said that the verdict is excessive. It follows that the judgment and order appealed from should be affirmed, with costs.

Judgment and order affirmed, with costs. All concur, except WILLIAMS, J., who dissents on the ground that it sufficiently appears that Lyon, the hostler, knew the plaintiff was under the engine at the time he started it, which he did by accident.