Tinney v. Boston & Albany Railroad

By the Court, Balcom, J. The head-note to Snow v. Housatonic Railroad Company, (8 Allen, 441,) is that “ a railroad company may be held liable for an injury to one of its servants, which is caused by a want of repair in the road-bed of the railroad.” But there is no holding, in this State, that a railroad company is bound to furnish a safe road-bed, or in default thereof is liable for an injury to one of its employees by reason of such default. Bacon, J., in delivering the opinion of the Court of Appeals, in Warner v. The Erie Railway Company, (39 N. Y. 468,) re [220] ferred to the case of Snow v. Housatonic Railroad Company, (supra,) and said : “ It is susceptible of the criticism that the defect in the track, through which the injury was suffered,, was palpable to view, and was known to, and was grossly neglected by, the track repairer, whose specific duty it was to remedy the defect.” But it cannot be said that decision was approved in Warner v. The Erie Railway Company, (supra.) Nor did this court hold, in Faulkner v. The Erie Railway Company, (49 Barb. 824,) that a railway company is bound to provide its employees with a safe roadway, or pay damages for injuries to such employees by reason of defects in its road-way. And no such principle was held in Brickner v. The New York Central Railroad Company, (2 Lansing, 506.) The deceased, in this case, lost his life by reason of a switch not being placed, by some person, so that the locomotive he was on would run upon a track other than the one on which it went and ran off. It was a three frog switch, that the plaintiff’s counsel insists was wrongly placed, or was misplaced, and caused the death of the deceased. But the fixing of that switch, in the way it was placed, was not traced to the defendant, or either of its employees. I am unable to see that the defendant was chargeable with negligence because one La Clare was acting as switchman in the defendant’s yard the day the deceased was killed. He was not the regular switchman employed there ; and the fair and just inference from the evidence is, that he was there without the knowledge of the defendant, or of its agent who had authority to employ a switchman there, and by exchange with the' regular switchman there, whose competency was not questioned at the trial. It cannot be assumed that the defendant was responsible for the absence of its regular switchman that day. But La Clare had had some experience in switching at previous times ; and the evidence would not [221] justify us in holding that the deceased lost his life by reason of any carelessness or incompetency of La Clare as a switchman. The business of the locomotive “ Trojan,” on which the deceased was acting as fireman when he was killed, was hauling cars into the defendant’s yard, and switching there. He had been at work on that locomotive there about fifteen days, before his death. That locomotive was drawing or pushing several cars when the deceased was killed. Two or three brakemen were then on that train, who sometimes tended or changed the switches in the yard there. In switching cars it was their duty, at times, to shift their own switches for their own accommodation. And the engineer on the locomotive had the right to stop his train and have his brakeman change the switches. It is probable if the brakemen had all been at their places they could have stopped the train and saved the life of the deceased. Four men were riding on the locomotive (three besides the deceased) when the difficulty with the switches was first discovered. The engineer did not then shut off steam, or whistle, though he did before he jumped off the locomotive. And it is possible, and perhaps probable, that he could not have stopped the train if he had done all he could in that direction from the time he first discovered the danger he was in there. There were three or four brakemen on some of the trains in the yard, and it was the practice that they did the switching for their own trains when occasion required. I am of the opinion the evidence failed to show that the defendant was liable for damages in this action. I think it cannot be said that the deceased lost his life exclusively by reason of the carelessness or incompetency of La Clare, or of any employee of the defendant, of whose incompetency the defendant had knowledge or notice. And I am of the opinion the defendant was not liable for damages in this action, on the ground that it did not have a [222] greater number of switch tenders in the yard where the deceased was killed. The deceased knew the condition .of matters in that yard, and that brakemen on the trains which the locomotive he was on drew, sometimes were required to act as switchmen. [Third Department, General Term, at Elmira, May 7, 1872. Miller, P. J., and P. Potter and Balcom, Justices. I do not think the obligation on the defendant, if conceded, of providing suitable and sufficient servants and appliances for its protection, according to the decisions of this court, in Buckner v. N. Y. Central R. R. Co, (2 Lansing, 506,) and Sprong v. Boston and Albany R. R. Co., (60 Barb. 30,) rendered it liable to the plaintiff on the evidence in the case. And I am of the opinion a case would not have been proved against the defendant if the judge had received all the evidence he rejected, that the plaintiff offered to give. It therefore is unnecessary to determine whether the judge erred in rejecting any of the offers of evidence made by the plaintiff’s counsel. This case, in my judgment, is merely that of the death of one of the defendant’s employees, either by reason of' his own carelessness, or the negligence of another employee of the defendant engaged in the same general business with the one who was killed. If these views are correct, the judge was right in refusing to submit the case, or any question in it, to the jury, and correctly nonsuited the plaintiff. My conclusion is, that the plaintiff's motion for a new trial should be denied, with costs.