Majority
p. 293HANNIGAN v. LEHIGH & H. R. RY. CO. (Supreme Court, General Term, Second Department. December 2, 1895.) Argued before DYKMAN and PEATT, JJ.
Headnote
Injury to Brakeman—Coupling Cars—Contributory Negligence.Whether a printed rule of a railway company, requiring use of a coupling stick, was a live rule, or had ceased to be in force, and, consequently, whether a brakeman was negligent in making a coupling without such stick, is a question for the jury; there being evidence that the rule had never been enforced, and that brakemen applying for them at the company storehouse had been unable to procure them.
•Appeal from circuit court, Orange county.
Action by Eichard Hannigan against the Lehigh & Hudson Eiver Railway Company for personal injuries. 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.
John J. Beattie, for appellant.
John W. Lyon, for respondent.
The objection chiefly urged against the judgment is that the plaintiff was guilty of contributory negligence, in failing to use a coupling stick. The rule of the company, printed on the back of the time-table, required their use, and stated they could be procured at Warwick. But it was proved that the rule had never been enforced, and that brakemen who had applied for them at the storehouse had been unable to procure them. On the testimony the court
p. 294
properly left it to the jury to say whether the rule was a live rule, or whether it had ceased to be in force. Hayes v. Manufacturing Co., 41 Hun, 407 . The verdict was not excessive. Wooster v. Railway Co. (Sup.) 16 N. Y. Supp. 764 . No other question requires discussion. Judgment affirmed, with costs.