Hyperlawhypertext legal database Drake v. New York Central & Hudson River Railroad 62 N.Y. St. Rep. 592

← Cases

Drake v. New York Central & Hudson River Railroad

62 N.Y. St. Rep. 592 Court N.Y. Gen. Term Decision date 1894-09-27 English

Delivered by Mayham, P. J.

Contents

Majority

p. 592
William A. Drake, App’lt, v. New York Central & Hudson River Railroad Company, Resp’t.
(Supreme Court, General Term, Third Department,
Filed September 27, 1894.)

Headnote

1. Evidence—Hearsay.
Testimony, offered by tlie defendant in an action by an employe for personal injuries, as to wbat another employe said about the matter, is hearsay.
2. Master and servant—Rules—Fellow.
A master, who has provided adequate rules for the government of his servants, is not liable for injuries caused by the neglect of his co-servants to observe such rules.
Appeal from a judgment entered on an order dismissing the complaint.
M F. Bullard, for app’lt; Harris & Rudd-{Hamilton Harris, of counsel), for resp’t.

There was no evidence in this case of negli-' gence on the part of the defendant which would justify the submission of that question to the jury. The only evidence relied upon by the plaintiff to establish the fact that the defendant failed to furnish sufficient and suitable lamps was the testimony of the plaintiff of the declaration of the defendant’s brakeman. That was clearly hearsay, and amounted to no proof of the fact, and cast no burden upon the defendant of proving the contrary, or negativing that unsworn statement. It did not overcome the legal presumption that competent and sufficient servants were employed by the defendant. Potter v. N. Y. C. & H. R. R. R. Co., 136 N. Y. 77 ; 48 St. Rep. 843 . Nor does the testimony of the plaintiff that he saw no light, and heard no torpedoes explode, overcome that presumption.

The company had furnished adequate rules governing the conduct of its employes, and if the coTemployes of the plaintiff failed in the observance of those rules, and the plaintiff was injured for want of such observance, it was the consequence of the negligence of the co-employes for which the defendant is not liable. There .was, therefore, nothing to be submitted to the jury, and the learned trial judge properly dismissed the plaintiff’s complaint.

Judgment affirmed, with costs.

All concur.

Cases cited