p. 671SISCO v. LEHIGH & H. R. RY. CO.(Supreme Court, General Term, Second Department.Headnote
Master and Servant—Defective Appliances.In an action by a brakeman for personal injuries, a verdict for plaintiff will not be disturbed where it appears, while climbing up the side of a car m the discharge of his duty, he was struck by the arm of a mail crane which projected within 12 inches of the side of the car, and there was no evidence that it was necessary for the arm to come so near the car.
Appeal from circuit court, Orange county.
Action by Eugene Sisco against the Lehigh & Hudson River Railway Company to recover damages for personal injuries sustained by plaintiff while a brakeman in defendant’s employ. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
Argued before DYKMAN" and PRATT, JJ.John J. Beattie, for appellant.
John W. Lyon, for respondent.
Plaintiff was a brakeman with defendant, and while climbing up the side of a freight car, in discharge of his duty, was hit and injured by the arm of a mail crane which projected within 12 inches of the car. The structure had been erected about four weeks, and plaintiff had passed it three times before the accident. He had received no notice of its erection. The jury were instructed that, in order to find a verdict for plaintiff, they must find that the appliance was unsafe, insecure, or dangerous, and that reasonable care by defendant would have discovered the danger. The court refused to charge that the nearness of the structure to the track was no evidence of negligence. We are of opinion that there was nothing in these instructions of which defendant can complain.
p. 672The case is hare of any evidence that any necessity existed for the projecting arm to come within 12 inches of the side of a car along which brakemen must climb. So far as appears, the arm might have been twice as far from the car, and yet have performed its work equally well. If that were so, the negligence of defendant seems clear. We do not find that plaintiff was negligent. Judgment affirmed, with costs.