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Joyce v. Rome, Watertown & Ogdensburgh Railroad

29 N.Y.S. 898 Court N.Y. Gen. Term English

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p. 898
JOYCE v. ROME, W. & O. R. CO.
(Supreme Court, General Term, Fourth Department.
July, 1894.)

Headnote

Master and Servant—Defective Appliances.
In an action against a railroad company for injuries received by plaintiff while in defendant’s employ, there was evidence that the coupling appliance on one of the cars was defective. Held, that it was a question for the jury whether the defect contributed to the injury, and whether it existed before the train started on its run, so that it might have been ■discovered by proper inspection.
Appeal from circuit court, Oswego county.
Action by Harvey Joyce against the Rome, Watertown & Ogdensburgh Railroad Company, while in defendant’s employ. From a judgment entered on a nonsuit, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.
Reversed.
Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
J. W. Shea, for appellant.
Mullin, Griffin & Walker, for respondent.

Under the ruling in Bailey v. Railroad Co., 139 N. Y. 302 , 34 N. E. 918 , the duty rested upon the defendant to cause a proper inspection of the cars before they left Oswego. There was evidence tending to show that the appliances for coupling were defective; that there was an improper play of the drawhead, of from one to three inches. Whether this contributed to the injury, and whether it existed when the train left Oswego, and might, by

p. 899
proper inspection, have been discovered and remedied, were questions of fact, for the jury. So was the question of contributory negligence. See Goodrich v. Railroad Co., 116 N. Y. 398 , 404, 22 N. E. 397 ; Ellis v. Railroad Co., 95 N. Y. 546 . We think the case should have been submitted to the jury. All concur.

Judgment and order reversed, and new trial ordered; costs to abide the event.

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