Durkin v. . Sharp

Tracy, J. The plaintiff’s intestate was an engineer in the service of the defendant, who was engaged in the operation of the Long Island railroad and its leased lines, as receiver under the order and authority of the Supreme Oourt. On the 12th day of September, 1878, while running a train for Bockaway, over the line of the Southern railroad, a leased line, he sustained fatal injuries by the derailment of the engine and train. Plaintiff claimed upon the trial, and produced testimony tending to show that the defendant’s track was defective at the place of the derailment. The defendant controverted this testimony, and upon this point there was a conflict of evidence. It must, therefore, be assumed in this court, the jury having found for the plaintiff, that the track was defective. But the defendant further proved, and the fact was not disputed, that the flange of the forward left-hand wheel of the en *227 gine was broken at the time of the accident. At the time of the derailment the train was running eastward at considerable speed, round a curve curving to the right. Broken pieces of the flange were picked up on the track at a point west of the place where the train came to a standstill. Upon the trial the defendant contended that the flange of the wheel- broke before the train left the track, and that the breaking of the wheel caused the derailment. On the other hand plaintiff contended that the train left the track before the wheel was broken, and that the derailment of the train was in nowise attributable to the breaking of the wheel. The defendant also proved that the fracture of the flange was due to an undiscoverable flaw in the wheel, and the court charged the jury that if they believed that the deceased came to his death by reason of a defect in the wheel the plaintiff could not recover. But the court, refusing the defendant’s motion to dismiss the complaint, left it to the jury to say whether the derailment was caused by the defects in the track, or by the breaking of the wheel. The defendant’s contention in this court is that, there being two possible causes of the accident developed by the testimony, the burden was upon the plaintiff to establish, by some evidence, a (causal) connection between the defects in the track and the derailment of the train, and that there is no such evidence in this case. In this we think the learned counsel is mistaken. We have carefully looked into the evidence and are of the opinion that there was sufficient evidence to justify the court in submitting the question to the jury to determine whether the derailment was caused by .the defects in the track or by the breaking of the. wheel. The defendant requested the court to charge “ that if the j ury believe the track had been inspected within a reasonable time prior to the accident, by a competent inspector of the defendant, and had been by him adjudged to be" in safe condition, the plaintiff cannot recover.” The court refused to charge as requested, to which there was an exception. The inspection of the track was a duty of the master. Had *228 such duty been carelessly and negligently performed, even by a competent inspector, the master would still be liable. To excuse him from liability the track must have been carefully inspected by a competent inspector. The. request, as framed, omits one of the elements essential to such an inspection as would have exonerated the defendant, and was properly refused for this reason. The other requests were fully covered by the charge of the court. The judgment, should be affirmed, with costs. All concur. Judgment affirmed.