Mulvaney v. Brooklyn City Railroad — 49 N.Y. St. Rep. 637

Majority

p. 637

James F. Mulvaney, Resp’t, v. The Brooklyn City Railroad Co., App’lt.

(City Court of Brooklyn, General Term,

Filed December 27, 1892.)

Headnote

Master and servant—Railroads—Negligence.

Plaintiff, who was a brakeman on defendant’s road, while endeavoring to get a drunken man off the side step of the ear, in pursuance of its rules, was knocked off the train by a train moving in an opposite direction around a curve. It appeared that the tracks were too close together for trains to pass safely; that the outer rail was not raised; that the curve was made of straight rails, and that there were no rules that trains should not pass each other on the curve at all, or only at slackened speed, or that all persons should keep off the step while rounding the curve. Held, that these facts unexplained warranted the finding of negligence on the part of the defendant.

Appeal from judgment in favor of plaintiff, entered upon a verdict for $5,000, and from order denying motion for a new-trial.

Johnson & Lamb, for resp’t; Morris & Whitehouse, for app’lt.

The plaintiff, a brakeman on one of defendant's trains, recovered a verdict against the defendant for injuries claimed to have been inflicted solely through the negligence of defendant. From judgment entered thereupon, and from order denying motion for a new trial, this appeal is taken. The appellant’s counsel argued this appeal solely upon the ground that a nonsuit should have been granted, insisting that there was no negligence on the part of defendant, that it was one of the risks assumed by plaintiff, and that plaintiff was chargeable with contributory negligence.

p. 638

There is testimony in the case from which it can be fairly inferred that plaintiff, while engaged in the performance of the duties imposed upon him by the orders of defendant, was upon the side step of one of the open cars of the train drawn by a steam engine around the curve at Sixty-seventh street, when the tz-ain moving in the opposite direction rounded the same curve, knocked plaintiff off his train, and thus caused the injuries complained of; that the tracks were improperly laid, in that they were too close for trains to pass safely; that the outer rail of the curve was not raised, and that the curve was made of straight rails and not curved rails ; that it was not safe for trains to pass each other on this curve at the usual speed, or at all; that plaintiff never saw trains passing each other on this curve but twice; that he had been ordered by defendant to keep passengers off the step next to the other track, and when he was knocked off, he was on the step for the purpose of forcing an intoxicated passenger to get off this step and into the car.

It seems to us that these facts, unexplained, would warrant a jury in finding defendant chargeable with negligence, for “ a railroad corporation, for the safety of its * * * employes, is bound to use suitable care and skill in furnishing not only adequate engines and cars, but also a safe and proper track and roadbed." Donnegan v. Erhardt, Receiver, etc., 119 N. Y., 468 ; 29 St. Rep., 589 . Then, again, there seems to have been no rules for and instructions to those in charge of trains, that trains shoulil not pass each other upon this curve at all, or if they did, that they should slacken the speed, or that all persons must keep off the steps while rounding this curve. “A railroad company is bound to guard its employees against the negligence of co-employes, so far as it can, by the enactment and promulgation of reasonable rules in the management of its business.” Abel v. Prest., D. & H. C. Co., 128 N. Y, 662 ; 40 St. Rep., 626 ; Sheehan v. N. Y. Cent. R. R. Co., 91 N. Y, 334 . Such a company “is bound to carry on its business under a proper and reasonable system or regulations * * * and if, through any defect therein,

an injury occurs to the servant, the corporation will be liable.” Dana v. N. Y. Cent. R. R. Co., 92 N. Y., 640 ; Ford v. The Lake Shore, etc., R. R. Co., 124 N. Y., 493 ; 36 St. Rep., 494 .

The defendant took no steps -to make this track and roadbed reasonably safe and proper, or to instruct the employees of the dangers thereof, or to regulate the passing of trains at this dangerous point. It can hardly be claimed that plaintiff was guilty of contributory negligence, as a matter of law, in being upon this step in obedience to orders of his superiors to put passengers off this step, when he was ignorant and uninformed of the dangers from a passing train on this curve by virtue of the condition of this track and road-bed. If the engineer was negligent, it is well settled that such negligence would not defeat plaintiff’s right of recovery, provided the injury was caused by the failure of defendant to use such care as duty to its employes demanded. Abel v. Prest., etc., D. & H.C. Co., 128 N.Y., 662 ; 40 St. Rep., 626 . We are of the opinion that the motion for nonsuit was properly de

p. 639

nied, and do not think, on examination of the evidence, that the verdict should be set aside.

Judgment and order must be affirmed, with costs.

Osborne, J., concurs._