Millott v. New York & New England Railroad — 46 N.Y. St. Rep. 145

Majority

p. 145

Edward Millott, Resp’t, v. The New York & New England Railroad Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed May 9, 1892.

Headnote

Master and servant—Negligence.

Plaintiff was a yard brakeman in the employ of defendant, and was injured while trying to uncouple a car while moving. He was unable to do so because of a dead link in the drawhead of the forward car over which the coupling; link went, and the drawhead of the other car was six inches lower. Plaintiff was the only witness in his behalf, and was contradicted by nine witnesses. Held, that as plaintiff’s evidence was sufficient to warrant a verdict in his favor if believed, such verdict was conclusive on the facts and should not be disturbed.

Appeal from judgment in favor of plaintiff, entered on verdict.

W. C. Anthony, for app’lt; John W. Lyon, for resp’t.

The plaintiff in this action was employed by the defendant, and his duty was to couple and uncouple cars for the purpose of making up trains at the yard of the company at East Hartford in the state of Connecticut, tobe run out on the railroad.

Early in the morning of the 23d day of February, 1890, while it was yet dark, the plaintiff and others were making up a train in the yard, and he went between two cars to uncouple them: they

p. 146

were box cars belonging to another company, and the drawheads and bumpers were of unequal height, those of the hindermost of the two being about six inches lower than the other.

Before the plaintiff started to go between the cars he gave a signal to the engineer to kick off a car, and the train was started back slowly; then the plaintiff passed in between the cars as they were moving, with his lantern in his left hand, and took hold of the pin of the rear car with his right hand. That was the car to be kicked off on the switch. At that time the train was moving backwards and the plaintiff was unable to extract the pin because, according to his testimony there was a dead link driven into the drawhead. of the forward car, and the coupling link was over the top of that but did not enter the drawhead as far as it otherwise would. Then the drawhead on the car behind was five or six inches lower than the drawhead bn the other.

While the cars were moving slowly back in obedience to the ' signal, the slack went out of the train an$ the cars came suddenly together, and the drawhead of the lower car overrode the link and caught the elbow of the plaintiff bétween the two bumpers and crushed the main artery of this arm so that the blood would not circulate through it, and amputation was rendered necessary, and his arm was taken off six inches below his shoulder.

This action was commenced for the recovery of the damages sustained by the plaintiff, based upon the negligence of the defendant.

The cause was tried at the circuit, where a verdict was rendered for the plaintiff for $5,000, and from the judgment entered upon the verdict the defendant has appealed.

The defendant moved for a new trial on the minutes of the court upon the grounds enumerated in § 999 of the Code of Civil Procedure; the motion was denied and the defendant excepted.

There is no appeal from an order denying the motion for a new trial, and no order denying such motion.

There was no exception to the charge of the trial judge, and the charge is omitted from the case for that reason.

The plaintiff was the only witness sworn in his behalf upon the trial, and there were nine witnesses sworn for the defendant whose testimony tended to contradict that of the plaintiff, and some of them testified that he said the injury was the result of his own fault.

Whatever there was in conflict with the testimony of the plaintiff was settled in his favor by the verdict of the jury, and his evidence was sufficient to sustain the verdict.

There was one exception on the part of the defendant to the' exclusion of testimony respecting the compensation of men who pull the coupling pins, but it presents no question worthy of ■ examination.

The questions raised by motion for a nonsuit have all been decided adversely to the contention of the defendant Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y., 462 ; Goodrich case, 116 id., 398; 26 St. Rep., 767 ; Fuller v. Jewett, 80 N. Y., 46 .

The judgment should be affirmed, with costs.

Pratt, J., concurs ; Barnard, P. J,4 not sitting.