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Ryan v. Long Island Railroad

4 N.Y.S. 381 Court N.Y. Gen. Term Decision date 1889-02-01 English

Delivered by Barnard, P. J.

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p. 381
Ryan v. Long Island R. Co.
(Supreme Court, General Term, Second Department.
February 1, 1889.)

Headnote

Master and Servant—Dangerous Premises—Contributory Negligence.
Plaintiff’s decedent, who was employed by defendant as brakeman, was knocked from the top, of a car by a low bridge oh a very dark night, and killed. No warning signals were displayed at the bridge, as provided by Laws N. Y. 1884, c. 439, § 2, requiring that warning signals shall be maintained at every low bridge which crosses a railroad track, if such signals are necessary for the protection of employes on top of cars; but there were such signals at bridges on each side and in close proximity to the one where the accident occurred, and it was shown that it was understood by the employes of the road that such signals would serve for the intervening bridges. It appeared that decedent had traveled past such bridges for several months before the accident. Held, that defendant was not liable.[1]
Appeal from circuit court, Suffolk county.
Action by Thomas Ryan, as administrator of John S. Ryan, against the Long Island Railroad Company, to recover damages for the death of the decedent, caused by being knocked from the top of a freight car while passing under a low bridge. Laws 2L Y. 1884, c. 439, § 2, provides that warning signals shall be maintained at every low bridge which crosses a railroad track, if such signals are necessary for the protection of employes on top of cars. Judgment was given for plaintiff, and defendant appeals.
Argued before Barnard, P. J., and Dykman and Pratt., JJ.
p. 382
Hinsdale <£• Sprague, for appellant. George C. Hendrickson, for respondent.

The deceased was a brakeman on the Long Island Railroad. There are four low bridges near Jamaica, in Queens county. Early on the morning of the 4th of April, 1887, and while it was very dark, the deceased, while engaged in his employment as brakeman on the top of his car, was killed. There are four low bridges in close proximity. The defendant had erected warning signals about 100 feet from the east side of the east bridge and about the same distance from the west side of the western bridge, and none for the two intervening bridges. The train was going east when the accident occurred. The deceased passed through 'the western bridge safely, but was killed by the second bridge. Assuming the utmost extent of liability to be imposed by chapter 439, Laws 1884, and that they were bound to erect these warning signals at each bridge, there is no right of action for the injury. It was a risk assumed by the efnploye. He had passed these bridges for three months, and the case fully shows that it was understood by the employes that these bridges had warning signals at each end of the four bridges, and that these signals were a warning for all the bridges. Hannigan and Hayes, the two brakemen called by the plaintiff, so testify. The warnings were apparent, and the deceased must take the risk of an omission of the same. De Forest v. Jewett, 88 N. Y. 264 . Gibson v. Railroad Co., 68 N. Y. 448 . The complaint should have been dismissed. Judgment reversed, and a new trial granted, costs to abide event. All concur.

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