Shambow v. New York, New Haven & Hartford Railroad — 39 N.Y. St. Rep. 367

Majority

p. 367

George T. Shambow, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.

(New York Superior Court, General Term,

Filed July 2, 1891.)

Headnote

Master and servant—Evidence—Negligence—Defective machinery.

■ In an action brought against a railroad company for personal injuries sustained by a brakeman while in their employ, at the trial defendant offered no proof and the case was submitted on the evidence adduced by-plaintiff to show that the injuries were sustained in consequence of a defect in the brake which plaintiff had to work, and that it might have been discovered by the exercise of ordinary care and diligence on the part of defendant. Held, that from the evidence submitted the jury had a right to find for plaintiff, and that the verdict would not be disturbed.

p. 368

Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order, denying defendant’s motion upon the judge’s minutes for a new trial.

Page & Taft, for app’lt; Thomas P. Wickes, for resp’t.

—This action was brought by the plaintiff to recover damages for injuries sustained in consequence of the alleged negligence of the defendant while he was engaged in the performance of his duty as a brakeman in the Harlem River yard of the defendant

At the trial the defendant offered no proof and the case was summed up and submitted to the jury upon the evidence adduced by the plaintiff. Upon that evidence the jury had a right to find that the injuries were sustained in consequence of a defect in the brake with which the plaintiff had to work, and that the defect might have been discovered by the exercise of ordinary care and diligence on the part of the defendant. This was sufficient to call for a determination by the jury of the question of defendant’s negligence.

Upon the' question of plaintiff’s alleged contributory negligence the case, upon the facts presented, was also one for the jury. The various motions to dismiss the complaint were therefore properly denied and the issues were properly submitted to the jury. None of the exceptions taken to the admission of evidence presents, under all the circumstances, ground for reversal, nor was there any error in the charge or the refusals to charge otherwise. Hpon the whole, substantial justice seems to have been done.

The judgment and order should be affirmed, with costs.

Dugro and Gtldersleeve, JJ., concur.