Hyperlawhypertext legal database McNeil v. New York, Lake Erie & Western Railroad 24 N.Y.S. 616

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McNeil v. New York, Lake Erie & Western Railroad

24 N.Y.S. 616 Court N.Y. Gen. Term Decision date 1893-07-28 English

Delivered by BARNARD, P. J.

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p. 616
McNEIL v. NEW YORK, L. E. & W. R. CO.
(Supreme Court, General Term, Second Department.
July 28, 1893.)

Headnote

Master and Servant—Assumption op Risk.
A brakeman who has been more than a year in the employ of a railroad company assumes the risk incident to the fact that some of the guard rails in the company’s switch yards are not blocked, so as to prevent an employe’s foot from being caught between the guard rail and the main rail; and the company is not liable for his death, caused by failure to block such guard rails. Appel v. Railroad Go., 19 N. E. Rep. 93 , 111 N. Y. 550 , followed.
Appeal from circuit court, Orange county.
Action by James McNeil, as administrator of the estate of Arthur McNeil, deceased, against the New York, Lake Erie & Western Railroad Company, to recover damages for the death of plaintiff’s intestate, caused by defendant’s negligence while he was in its
p. 617
employ as a brakeman, in which position he had been engaged more than a year. From a judgment dismissing the complaint, plaintiff appeals.
Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
John W. Lyon, for appellant.
Lewis B. Carr, for respondent.

Arthur McNeil, on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant, and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between the guard rail and the main rail. . The negligence claimed on the part of defendant is that the company did not block the guard rail, which is done by placing in the open space between the two rails something which would prevent the foot of an employe from being caught between the two rails. The rule is that an employe assumes the risk of the employment. Kern v. Refining Co., 125 N. Y. 50 , 25 N. E. Rep. 1071 ; Davidson v. Cornell, 132 N. Y. 228 , 30 N. E. Rep. 573 . The master is not bound to furnish the best ldnd of appliances, or to give an extreme character to the structure, so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked, and some not. The case cannot be distinguished from the case of Appel v. Railroad Co., 111 N. Y. 550 , 19 N. E. Rep. 93 . The nonsuit was therefore right, and the judgment should be affirmed, with costs. All concur.

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