Majority
p. 126(80 Hun, 320.) CLARK v. NEW YORK, L. E. & W. R. CO. (Supreme Court, General Term, Second Department. July 27, 1894.) Argued-before BROWN, P. J., and DYKMAN, J.
Headnote
.Master and Servant—Injuries to Servant—Contributory Negligence.Plaintiff, wlio had been employed as brakeman by defendant for several; months, was placed on a car in order to give the necessary signals to the engineer of a train which was being loaded with crushed stone. The dust from the crusher interfered with his view of the engineer, and he got down from the car, and stood on the main • track. After standing there about five minutes, he was struck by a passing engine. There was ■ nothing to interfere with his observation in each direction. Held, that, he was guilty of contributory negligence.
Appeal from circuit court, Orange county. •
Action by Charles H. Clark against the New York, Lake Erie &: Western Railroad Company for personal injuries. • From a judgment entered on an order dismissing the complaint, plaintiff appeals.,. Affirmed.
John W. Lyon, for appellant.
Lewis E. Carr, for respondent.
The complaint in this action was properly dismissed upon the ground of the plaintiff’s contributory negligence. The plaintiff was a brakeman who had been employed by defendant three or four months prior to the accident. On March 4, 1887, he was assigned to work at a stone crusher near Otisville. A train of cars was being loaded with crushed stone, and stood upon a switch north of the two main tracks. The road at that point was-; through a rock cut, and the crusher stood on the rocks immediately -
p. 127
north. of the switch. The stone was loaded onto the cars through a chute. In order to make the load as nearly level as possible, it was necessary to move the cars about two feet at a time, and in order to do that plaintiff was stationed on the car to give the necessary signals to the engineer. After the first car was loaded, finding that the dust from the crusher interfered with his seeing the engineer, plaintiff got down from the car onto the main tracks. From there his line of vision was clear. He stood there four or six minutes, when he was run over by an engine going west, and received the injuries complained of. It appeared that plaintiff stood on the west-bound track, and he testified that he did not know that fact, but obviously his failure to know it was the result of the utmost indifference to his surroundings and his safety. He knew the tracks were there, and that engines and trains were constantly passing that point, yet he failed totally to observe whether-he stood on or between the tracks. Ho one had directed him to go there, and there was nothing to interfere with his observation in each direction. Intent upon his work, he failed to observe the dangerous position that he occupied, or the approach of an engine in full view. The accident was the result of carelessness of the-grossest kind, for which plaintiff has no one to blame but himself. The judgment is affirmed, with costs.