Dye v. Delaware, Lackawanna & Western Railroad — 41 N.Y. St. Rep. 690

Majority

p. 690

John Dye, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.

(Court of Appeals, Second Division,

Filed December 22, 1891.)

Headnote

1. Master and servant—Injury while coupling cars—Evidence of SIMILAR ACCIDENTS INCOMPETENT.

Upon the trial of an action by a switchman for damage? for injuries sustained while coupling cars, through the deadwoods overlapping each other, the defendant claiming that the overlapping or absence of dead-woods was of common occurrence and well known to plaintiff, the latter was permitted to show that similar accidents had occurred on defendant’s road prior to the one in question. Held, error; as the evidence had no legitimate bearing on the questions in issue and might have encouraged the jury to give a larger verdict than they otherwise would.

2. Same.

While such evidence may be competent in a class of cases where it is important to show that the defendant had notice or was warned of the dangerous character of municipal sidewalks, or of the inadequacy of facilities provided for the passage of passengers to and from trains over the company’s premises, the exceptions to the rule should not be so extended as to permit such testimony in a case where it can have no bearing whatever on the issues.

Appeal from a judgment of the general term of the superior 'court of Buffalo, entered on an order affirming a judgment entered in favor of the plaintiff on the verdict of a jury.

The recovery had in this action was for personal injuries sustained by the plaintiff, an employee of the defendant, on the 17th •of October, 1887, while he was engaged in coupling cars. The cars which he was attempting to couple he described as a jimmy and a chronic car. The jimmy was a four-wheeled coal car, considerably lower than the eight-wheeled car which he called a chronic car. So when the two cars came together the dead-woods of the eight-wheeled car, instead of meeting the dead-woods of the jimmy, thus keeping the cars at a sufficient distance apart to enable a person to stand between them, overlapped, •causing the cars to come so nearly together that the plaintiff was .severely injured.

The plaintiff commenced working on rail roads about fifteen years prior to the accident, during which time he had served in •different capacities, such as brakeman, baggageman and switch-man.

At the time of the accident and for several months prior he had been a member of a switching gang connected with the work of making up and distributing trains between the yard at East Buffalo ■and the yard at the foot of Erie street At the East Buffalo yard the trains coming from the east are broken up and distributed by switch engines and their crews. Loaded and unloaded cars are brought from different points in the city, including other railroad yards, by the switch engines, to the yard at East Buffalo, and are there made up into trains to go east. The crews connected with ■the switch engines do all the switching, coupling and uncoupling ¡required in this Business, and it was of such a crew that the plaintiff was a member.

It appears that on defendant’s railroad there are a number of

p. 691

different kinds of cars in use, on some of which, there are no dead-woods at all, while on others there are short dead-woods. And the evidence tended to show that it was a matter of frequent occurrence-that when the jimmies and the eight-wheeled cars came together the dead-woods would overlap, and the switchmen in doing their work had daily to make couplings between such cars. The plaintiff, however, denied having any knowledge that such dead-woods-would overlap prior to the happening of the accident.

John G. Milburn, for app’lt; Ernest K. Weaver, for resp’t.

An exception taken to the admission of certain-testimony against the objection of the appellant requires a reversal of the judgment.

The defendant did not attempt to controvert the claim of the plaintiff that his injury was occasioned by the overlapping of the-dead-woods of the jimmy and the eight-wheeled car, thus permitting the cars to come so close together as to necefsarily severely injure a person who happened-to be between them at the time; nor was it pretended that the difference in the height of the dead-woods of the respective cars did not render their coupling in the-ordinary and usual way dangerous. On the contrary, the defendant not only conceded but introduced testimony tending to show that it had in use on its road many different kinds of cars, some-without any dead-woods whatever. That, in addition, there carneen its road m the regular course of business cars from other railroads, differing in their height, method of construction and mode of coupling.

It sought to show that these facts were well known to the plaintiff and to the members of the various switching crews, who,, as a part of their work, were obliged to couple and uncouple cars for distribution from the yard in East Buffalo to various other points in the city, and for collection from the yards of other railroads for the purpose of making them up into solid trains to go-east. Its object was to bring the plaintiff within the rule, that an employee who enters upon the discharge of duties which he understands to be dangerous, and continues in such employment of-ter becoming fully aware of the faults of construction which render his work particularly hazardous, will be deemed to have-assumed all the obvious risks incident to such employment.

This being the ground on which the defendant mainly claimed freedom from liability, the plaintiff was nevertheless permitted to show after he had rested his case and on the cross-examination of one of defendant’s witnesses, against the objection of the defendant, that similiar accidents had occured on defendant’s road prior to the one in question.

It is not seen how this evidence could have any legitimate-bearing on the questions in issue, while it may have had the effect to encourage the jury to give a larger verdict against the defendant than they otherwise would.

It is the general rule that proof of similar accidents is not admissible in evidence. This rule has exceptions, it is true.

In Pomfrey v. The Village of Saratoga Springs, 104 N. Y., 459 ;

p. 692

5 St. Rep., 802 , a witness who was testifying as to the condition of the sidewalk at the time of the injury which was the subject of the action, was permitted to testify that he had fallen there himself, and it was held to be competent because it tended to show liow he came to know the condition of the sidewalk.

It has been held that such evidence is competent in a class of cases where it is important to show that the defendant had notice, or was warned, of the dangerous character of municipal sidewalks, or of the inadequacy of facilities provided for the passage of passengers to and from trains over the company’s premises. Gillrie v. The City of Lockport, 122 N. Y., 403 ; 33 St. Rep., 636 , and cases cited; Brady v. Manhattan Railway Co., 127 N. Y., 46 ; 37 St. Rep., 340 .

But the exceptions to the rule have not been and should not be .so far extended as to permit such testimony in a case where it can Rave no bearing whatever on the issues; otherwise the general rule, which is well grounded, would be overthrown.

In the case before us it did not tend in any degree whatever to the establishment or support of plaintiff’s cause of action to show that the defendant had knowledge of the dangers incident to the -coupling of cars such as those which were the occasion of plaintiff’s injury.

It follows that a reversal of the judgment is required and we need not consider the other questions presented.

The judgment should be reversed.

All concur, except Potter and Vann, JJ., not voting.