Ryan v. Long Island Railroad — 22 N.Y. St. Rep. 655

Majority

p. 655

Thomas Ryan, Adm’r, App’lt, v. The Long Island Railroad Co., Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

Negligence—Contributory—Master and servant.

The plaintiff’s decedenf was a hrakeman employed by the defendant. He was killed while engaged in his employment on top of his ear. There were four low bridges in close proximity. The defendant had erected ■warning signals about one hundred feet distant, from the east side of the east bridge, and one about the same distance from the west side of the west bridge. The deceased passed under the west bridge in safety, and was killed by the second bridge. The evidence tended to show that he had passed these bridges in safety for three months previous, and that it was understood by the employees that the signals at each end were a warning for the intervening bridges. Held, that the defendants were not liable.

Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury after trial at Suffolk county circuit.

Hinsdale & Sprague, for app’lt; Thomas Young, for , resp’t.

—The deceased was a hrakeman on the Long Island Bailroad. There are four bridges near Jamacia 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 hrakeman on the top of his car, was killed.

There are four low bridges in close proximity. The defendant had erected warning signals about one hundred 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 at the second bridge.

Assuming the utmost extent of liability to be imposed by chapter 439, Laws of 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 task assumed by the employee. He had passed these bridges for three months, and the case fully shows that it was understood by the employees 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 brakeman, called by the plaintiff, so testify. The warnings were apparent, and the deceased must take the risk of an omission of the same. DeForest v. Jewett, 88 N. Y., 264 ; Gibson v. Erie Railroad, 63 id., 449.

The complaint should have been dismissed.

p. 656

Judgment reversed and a new trial granted, costs to-abide event.

All concur.