Wooster v. Western New York & Pennsylvania Railroad — 40 N.Y. St. Rep. 844

Majority

p. 844

Leonard A. Wooster, Resp’t, v. The Western New York & Pennsylvania Railroad Co., App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

1. Railroad—Negligesce.

Plamtiff, a flagman in defendant’s employ, after coupling cars with an iron pin, stepped back and came in contact with a pile of stones placed there six weeks before to be used in ornamenting posts about the depot. Plaintiff’s foot slipped on the pile and he caught at the car to prevent falling and his hand was crushed. Held, that the pile had been there a sufficient time to give defendant notice of its presence, and that the questions of negligence were for the jury.

2. Same—Damages.

Plaintiff was 29 years old, and earning $2.30 a day before the accident. He lost a hand; canget work only with difficulty, and can now earn only one dollar a day. Held, that a verdict of $6,500 was not excessive.

Appeal from a judgment entered upon the verdict of a jury rendered at the Brie county circuit, and from an order denying the defendant’s motion for a new trial.

Green & Marcy, for resp’t; John G. Milburn, for app’lt.

The plaintiff was a flagman upon the defendant’s road, and in attempting to effect the coupling of cars upon a freight train his hand was crushed between the cars, causing the loss of his hand.

There was evidence tending to show that the defendant caused to be piled contiguous to and parallel with the track upon which the train was moving when plaintiff attempted to make the coupling, a large quantity of cobble stones. The pile was from twenty-five to thirty feet long, fifteen to twenty-four inches high in the center and sloping down toward and near the track. It was at the time of the accident covered with snow. After effecting the coupling the plaintiff stepped out from between the cars, and in so doing his foot came in contact with the pile of stones. He slipped and caught hold of the car to prevent falling and his hand was crushed.

The stone had been placed there by the defendant’s employes to be used for the purpose of ornamentation about posts at the depot. They had been there from six weeks to two months at the time of the accident. It was the duty of defendant to furn

p. 845

nish the plaintiff with reasonably safe appliances for the hazardous work they required him to do.

It was a question for the jury whether the defendant’s negligence did not cause the plaintiff’s injuries. It did not very clearly appear by whose direction the stone were placed there. They had, however, been there sufficient time to give defendant notice of •their presence. The plaintiff used an iron pin in effecting the coupling, instead of a stick which had been provided by defendant for that purpose. It was a question for the jury, whether the use of the iron pin instead of the stick had anything to do in -causing the accident.

Plaintiff had effected the coupling, and had it not been for the presence of the pile of stone, would have probably escaped injury.

The plaintiff was, when injured, about twenty-nine years old; was earning $2.30 a day. After the loss of his hand he found it difficult to find employment and when employed was only able to get a dollar a day. He suffered pain and must through life suffer the inconvenience and mortification arising from the loss of his hand.

We do not think the verdict of $6,500 excessive.

We find no cause for disturbing the verdict. The judgment and order appealed from should be affirmed, with costs against the appellant.

Dwight, P. J., and Macomber, J., concur.