Hannigan v. Lehigh & Hudson River Railway Co. — 71 N.Y. St. Rep. 61

Majority

p. 61

Richard Hannigan, Resp’t, v. Lehigh and Hudson River Railway Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 2, 1895.)

Headnote

Negligence—Contributory.

Whether a printed rule of a company, which requires the use of a coupling stick, is a live rule, or has ceased to be in force, and, consequently, whether a brakeman is negligent in making a coupling without such stick, is a question for the jury, where there is evidence that the rule has never been enforced and that brakemen applying for such sticks at the company’s storehouse had been unable to procure them.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

John J. Beattie, for app’lt;

John W. Lyon, for resp’t.

The objection chiefly urged against the judgment is that the plaintiff was guilty of contributory negligence, in failing to use a coupling stick. The rule of the company, printed on the back of the time-table, required their use, and stated that they could be procured at Warwick. But it was proved that the rule had never been enforced, arid that brakemen who had applied for them at the storehouse had been unable to procure them. On the testimony the court properly left it to the jury to say whether the rule was a live rule, or whether it had ceased to be in force. Hages v. Bush & D. Manufacturing Co., 41 Hun, 407 ; 3 St. Rep. 136 . The verdict was not excessive. Wooster v. W., N. Y. & P. Railway Co., 40 St. Rep. 844 . Ho other question requires discussion.

Judgment affirmed, with costs.