Clark v. New York, Lake Erie & Western Railroad — 20 N.Y. St. Rep. 681

Majority

p. 681

William E. Clark, Resp’t, v. The New York, Lake Erie and Western Railroad Company, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 11, 1889.)

Headnote

Negligence—Rule as to liability oe a railroad company for injuries SUSTAINED BY ONE IMPROPERLY EJECTED FROM A TRAIN WHILE TRESPASSING THEREON.

In an action to recover damages for loss of services by the plaintiff of his son by reason of injuries occasioned by the act of an employee of the defendant in throwing water in his face while riding on the end of a caboose of a moving train, whereby he fell and suffered the injury complained of, the court charged,' “ of course if he (the employee) did not know or suspect that any boy was there, the company would not be responsible for it The question is submitted to you whether he did know there was a boy there ” Held, that the charge was correct and presented the true rule by which the question of negligence should be determined.

Appeal from a judgment entered upon the verdict in the plaintiff’s favor for the sum of $321.10 damages, the costs being taxed at $176.28.

James H. Stevens, Jr., for app’lt; Leslie W. Wellington, for resp’t.

This action is to recover damages for the loss of services by the plaintiff of his son Thomas, who is under age, by reason of personal injuries occasioned by the negligence of the defendant, and for the care and attendance of his son during his illness. In an action by the son against the defendant he recovered a judgment for the damages which he had suffered by reason of the same

p. 682

alleged act of negligence. The material facts on the trial now under review are the same as on the trial where the son was the plaintiff,which are stated in 2 N. Y. State Rep., 249. We there held that the evidence supported a judgment in favor of the son, and if our view's as there expressed were correct, then the plaintiff was entitled upon the merits to the verdict which was rendered in his favor.

The appellant has argued an exception taken to the refusal of the court to charge the jury as follows: That if the water was thrown without knowledge on the part of Mr. Decker (the brakeman) that any boy was on the caboose, the plaintiff could not recover. The court, however, followed this refusal to charge as requested by stating to the jury: “Of course if he did not know or suspect that any boy was there, the company would not be responsible for it. The question is submitted to you whéther he did not know there was a boy there.” To which ruling the defendant also excepted.

The charge as made was a modification of the one requested in this particular only, that if the conductor had reason to suspect there was a boy on the car, then whether his action was negligence or not would be determined the same as if he had actual knowledge that a boy was on the train.

_ We think the charge as made was correct in every particular, and presented the true rule by which the question of, negligence should be determined.

Judgment affirmed.

Haight and Bradley, JJ., concur; Dwight, J., not sitting.