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Ely v. New York Cent. & H. R. Railroad

34 N.Y.S. 739 Court N.Y. Gen. Term Decision date 1895-07-05 English

Delivered by MARTIN, J.

Contents

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p. 739
(88 Hun, 323.)
ELY v. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, General Term, Fourth Department.
July 5, 1895.)

Headnote

Master and Servant—Rules for Protection of Servant.
A railroad company is not negligent in failing to prescribe rules for loading iron rails on a flat car, in order to protect the workmen engaged therein, where there is no evidence that any rule relating to such work had been adopted by other companies, or was necessary or practicable.
Appeal from circuit court, Madison county.
Action by Andrew D. Ely against the New York Central & Hudson River Railroad Company for personal injuries. The complaint was dismissed, and plaintiff appeals.
Affirmed.
The plaintiff was an employs of the defendant, and had been in its employ four or five days previous to the accident. At the time of the accident the plaintiff was engaged with 23 other men in picking up and loading onto a fíat
p. 740
or platform car old rails that had been replaced by new ones. These men were divided into two gangs of 12 each, one on each side of the car. The rails were taken by each gang, and thrown onto the car. The car had loops at the sides for 6 stakes, but none were used during the time of the loading, although there were stakes for the use of the platform cars in the tool car, which was attached to the train. The cars were 3% or 4 feet above the top of the track. The rails being loaded would weigh some 600 or 700 pounds, and were piled between the tracks. The gang with which the plaintiff was working on the north side of the car picked up a rail and threw it onto the car about the same time that the gang on the south side threw one on. The latter struck the top of the car, swung around, and slid off the north side, striking the plaintiff. They had worked through the day in this manner, and no one had warned them when the rails were thrown from the opposite side. It was the first day the plaintiff had worked at loading rails. He commenced work at about 7 o’clock in the morning, and the accident occurred about 4 o’clock in the afternoon. At the time the rail slid off the rails were piled to the height of a foot or a foot and one-half in the center, and sloped down to the edge.
Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
Tuttle & Ransom, for appellant.
C. D. Prescott, for respondent.

The only question raised by the appellant is as to the propriety of the nonsuit granted by the trial court. He has cited a great number of authorities relating to the duties and liabilities of a master to his servant, the risks assumed by the servant, and upon the questions of negligence and contributory negligence. There is no uncertainty as to the rules of law established by the cases cited, but the question is as to their applicability to the facts in this case. We have carefully read the evidence and proceedings upon the trial, and fail to find sufficient proof of the defendant’s negligence to entitle the plaintiff to recover under the doctrine of the cases bearing upon that question. That a master owes to his servant the duty of furnishing reasonably safe appliances and machinery, a reasonably suitable and safe place in which to perform his work, and to exercise reasonable care in the selection of his coemployés, is a well-settled principle of the law of negligence. We fail to find in the evidence in this case any omission upon the part of the defendant to discharge any of the duties required by this rule. There is no evidence to show that the appliances, machinery, and the place where the plaintiff was performing his work were not reasonably safe. Neither do we find any evidence that any of the plaintiff’s coemployés were incompetent, nor that the defendant was negligent in their selection. The law also imposes upon a railroad company the duty of making and promulgating rules which, if faithfully observed, will give reasonable protection to its employés. This rule, however, is a reasonable one, and does not impose upon a railroad company the duty of making a specific rule for every particular act that is to be performed by its employés. The failure to adopt rules is not evidence of negligence, unless it appears that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity therefor. It was not suggested at the trial nor here what particular rule the defendant should have adopted. In this case there was no evidence that any rule relating to the work in which the plaintiff

p. 741
was engaged had been adopted by other companies engaged in business of a similar character, or by experts or other witnesses to show that any rule was necessary or practicable in such a case. Nor was the evidence such as to make the necessity and propriety of making and promulgating any rule so obvious as to render the question one of common experience and knowledge. Under similar circumstances, it was held by this court in Doing v. Railroad Co., 73 Hun, 270 , 26 N. Y. Supp. 405 , that the evidence was not sufficient to justify the court in submitting to the jury the question of the defendant’s negligence upon that ground. The same doctrine is held in Berrigan v. Railroad Co., 131 N. Y. 582 , 30 N. E. 57 , and Morgan v. Iron Co., 133 N. Y. 666 , 31 N. E. 234 .

Judgment and order affirmed, with costs. All concur.

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