Artis v. Buffalo R. & P. Railway Co.

(dissenting). I am unable to concur with a majority of the court in reversing this judgment and order, and •directing a new trial in the case. The plaintiff’s employment with the defendant as a brakeman commenced after dark on the •evening of March 28, 1892. While he had been a brakeman “upon other railroads, and had experience in their service, he had no knowledge at the time of the accident to him of the condition of the track upon which he was called to work, or the place where be was at work; and, in performing the service of attempting to couple the cars at the place of his injury, he was obeying the direction of the defendant’s yard master, who had set him at work. There was evidence sufficient to go to the jury in the plaintiff’s behalf that, at the place of the injury, there was a hole in the track, between two ties, about eight inches deep and ten inches long, that evidently had been left there by men at work upon the track in ballasting it. There was evidence, also sufficient to go to the jury, that no work had been done by defendant’s track-men at that point for a considerable period of time prior to the accident; so that , if the doctrine were applicable at all to this case, the jury might infer it, as stated by the learned tiral judge in denying the motion for a new trial herein, that “they might have found from the testimony that the hole had been there