p. 237SUTHERLAND v. TROY & B. R. CO.(Supreme Court, General Term, Third Department.Headnote
Injuries to Servant—Violation oe Master’s Rules.In an action for injuries to a locomotive engineer by a collision it appeared that at the time of the accident the engineer was running his engine faster than defendant’s rules allowed, and with knowledge that there was a risk of colliding with the other train if it was on time. It also appeared that tlje engineer frequently ran his engin'e at an excessive speed, and that other engineers did the same. Held, that the engineer was guilty of contributory negligence.
Appeal from circuit court, Rensselaer county.
Action by Rebecca Sutherland, as administratrix of Mark Sutherland, deceased, against the Troy & Boston Railroad Company, for alleged negligence causing the death of plaintiff’s intestate. There-was a judgment in favor of plaintiff, and defendant appeals.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK,. JJ.Theodore F. Hamilton, (John H. Peck, of counsel,) for appellant.
Warren, Patterson & Faulkner, for respondent.
This case has been several times before the court.. The court of appeals ( 26 N. E. 609 ) held that upon the evidence the plaintiff was not entitled to recover, because she “did not meet the obligations resting upon her of presenting a case from which the jury could fairly find that her intestate was free from any negligence which contributed to his death?’ Upon this last trial there was some additional evidence presented upon the question of contributory negligence from what appeared in the case when it was before-the court of appeals, but from a careful reading of the case I cannot see that the facts are substantially different from what they appeared to be then. Under the ruling of the court of appeals, it seems to me that the plaintiff has not now, as she did not then, established the fact that her intestate was free from contributory negligence. Instead of meeting the obligation that devolved upon her of proving a lack of negligence, the evidence strongly points-
p. 238directly the other way, and that, but for the intestate’s own negligence and violation of the rules of the company, this accident would not have happened. While upon this last trial there is evidence showing that the intestate, upon frequent occasions, ran his engine at a rate of speed greater than was permitted by the rules of the company, and that some other engineers had done the same thing, it also appears that, in addition to these rules, warning had been given, and posted upon the bulletin for the inspection of engineers, that they must not exceed the rate of speed prescribed by the rules of the company. It seems to me, upon the evidence in the case as it now appears, that, within the former decision of the court of appeals, the plaintiff is not entitled to recover. The judgment should be reversed, and a new trial granted, costs to abide the event.
MAYHAM, P. J., concurs. PUTNAM, J., not acting.