Opinion
July Term, 1899.
Frank Hiscock, for the appellant.
William S. Jenney, for the respondent.
No witness was produced upon the trial who was able to state precisely how the plaintiff's intestate met his death, but there was evidence tending to show that his head probably came in contact with the iron bow of the mail crane, and the jury, as they were doubtless entirely warranted in doing, have found by their verdict that such was the fact. We pass, therefore, to a consideration of the evidence relied upon to establish the defendant's negligence.
The mail crane which caused the death of the plaintiff's intestate was a contrivance which, when operated in connection with another appliance attached to a mail car, drew a bag of mail into the car while it was in motion. The device is one which of late years has been adopted by the leading railroads of the country, and, while exceedingly simple in its construction and operation, its use does undoubtedly add somewhat to the hazard attending the occupation of railroading. But this fact, standing by itself, it is hardly necessary to suggest, furnishes no ground of complaint to the plaintiff for her intestate when he entered the defendant's service well knew that he was engaging in an exceedingly perilous occupation, and that in consequence thereof he would be constantly exposed to the dangers ordinarily involved in the operation of a vast railroad, employing, as it necessarily did, various devices and appliances to facilitate the transaction of its business. He consequently assumed the risk of all such constructions as were reasonably adapted to the transaction of the defendant's business; and the burden consequently rested upon the plaintiff to establish that this particular appliance, entirely proper in itself, was either ill-contrived or improperly located. ( Sisco v. L. H.R.R. Co., 145 N.Y. 296.)
There is no contention, so far as the record discloses, that the mail crane in question was defectively constructed; but it is asserted that it was located in such proximity to track No. 3 as to unnecessarily expose such of the defendant's employees as were in the discharge of their respective duties upon engines and freight cars moving west to just such accidents as the one which befell the plaintiff's intestate. In order, therefore, to determine what foundation, if any, there is for such a contention, it becomes necessary to carefully examine the evidence in the case.
Shortly after the accident the plaintiff caused certain measurements to be made in order to ascertain the relation of the crane to the two tracks between which it was located; and it appears from the testimony of the witness who made such measurements that the distance from the center of the standard to the south side of track No. 3 was four feet and four inches, while the distance from the same point to the north rail of track No. 2 was four feet and eight inches. This same witness further testified that the gangway of the locomotive upon which the plaintiff's intestate was employed as a fireman extended two feet and four inches beyond the rail. This would leave a space of but two feet between the outside of the engine and the standard of the mail crane, and but seven inches between the engine and the iron bow when the crane was so adjusted as to deliver a bag to a mail car while in motion. It follows, therefore, if this evidence is to be believed, that when Brown passed Penfield station upon his locomotive upon the day of the accident, his head was liable to come in contact with the crane if for any purpose it was projected more than seven inches beyond the south side of the gangway. But, on the other hand, a witness was produced and sworn on behalf of the defendant, who testified that from measurements made by him while the trial was in progress, he ascertained that the space between the gangway of the locomotive and the bow of the crane was eleven and one-fourth inches, and it was virtually conceded by the plaintiff's counsel that these measurements were correct. It was claimed, however, that the iron standard which, at the time of the accident was some three inches out of plumb, was subsequently straightened, and that this circumstance accounted for the difference in the measurements made by these two witnesses. This theory of the plaintiff was apparently adopted by the jury, and as it was not without evidence to support it, we must assume for the purposes of this review that at the time of the accident the mail crane, when its bow stood at right angles to track No. 3, extended to within seven inches of a locomotive passing on that track.
We come, therefore, to the vital question in the case, which is, Was this a reasonably proper location of the appliance? On behalf of the plaintiff it was claimed, and evidence was given which tended to sustain the claim, that the standard might have been placed several inches nearer track No. 2, and still have served the purpose for which it was designed. To meet this contention, the defendant's roadmaster testified that he located the crane with a gauge furnished by the company, and that this gauge indicated the exact point at which the crane should be located, in order to fit the catcher attached to the mail car. But a witness for the plaintiff who claimed to have had considerable experience in such matters, testified that it was not necessary to station mail cranes exactly within a prescribed distance from the side of a mail car; that the best results were obtainable by locating them so that the mail bag, when adjusted to the top of the crane, would hang at a distance of about two feet and nine inches from the rail; that a variation of from five to twelve inches would not interfere with the successful operation of the appliance, and that a mail crane of like pattern as this one erected by this defendant at its station near the village of Clyde, and the only one as to the location of which the plaintiff was permitted to give evidence, was actually four inches nearer track No. 2 than the one in question. Evidence was also given from which it is insisted the jury might have found that, if this mail crane had been located a short distance farther to the west, it would have been entirely feasible to throw track No. 3 a few inches farther to the north, as confessedly had been done in other instances; and that had this been done, the danger of the crane coming in contact with employees upon passing trains would have been materially minimized, if not entirely avoided. If this be so, then in this respect, if in no other, the present case differs essentially from the Sisco Case ( supra), which the defendant insists is a controlling authority upon the question of its right to locate the crane where it did.
We do not think the evidence bearing upon the question of the defendant's negligence relieves the case from all doubt, nor are we by any means certain that, upon that evidence, we should have reached the same conclusion as did the jury; but, at the same time, such evidence cannot, in our opinion, be said to be altogether destitute of probative force, and, inasmuch as it was submitted to the jury in an exceptionally clear and impartial charge, we are disinclined to hold that it is insufficient to support their verdict.
As regards the question of contributory negligence, we deem it unnecessary to say much, in view of a recent decision of this court in a case in which many of the facts and circumstances were quite analogous to those here presented. ( Benthin v. N.Y.C. H.R.R.R. Co., 24 App. Div. 303.)
A witness who saw Brown almost up to the very instant at which he was struck, says that he (Brown) had apparently been engaged in raking his fire, and was replacing his rake upon the tender; that, as he did so, he stood in the gangway of the engine looking towards the east, or in the direction from which his train was coming. It appears that one of the defendant's rules, which was in force at this time, required its enginemen and firemen to keep a careful lookout from the engine when rounding curves, and at all times to take every precaution for the protection of their trains. At the time Brown replaced his rake upon the tender, the mail train was approaching from the east upon track No. 2, and was then in sight. In these circumstances it was not only proper, but it was his duty to watch the approaching train as well as his own, and, consequently, we think the evidence was such as to authorize the jury to find that the plaintiff's intestate was killed while in the discharge of his duty; and, if so, then we think it can hardly be said, as matter of law, that he ought to have seen and avoided this mail crane, for it was but one of many similar contrivances located along the line of the defendant's road, and, as was said in the Benthin Case ( supra), it "was not like a bridge or a station house — a structure — the location of which could not well be forgotten." On the contrary, an engineman or fireman might easily have forgotten its location, or failed to observe it while engaged in the performance of the distracting and responsible duties incident to his employment, without laying himself open to the charge of negligence, or of such negligence as would necessarily defeat a recovery in the case of accident. ( Wallace v. Cent. Vt. R.R. Co., 138 N.Y. 302; McGovern v. Standard Oil Co., 11 App. Div. 588.)
Our conclusion of the whole matter, therefore, is that we should not be justified in disturbing the verdict of the jury, and that, consequently, the judgment and order appealed from must be affirmed.
All concurred.
Judgment and order affirmed, with costs.