Artis v. Buffalo, Rochester & Pittsburgh Railway Co.

3 A.D. 1

Opinions

Adams, J.:

This case is by no means free from circumstances which cast suspicion upon the lona fides of the claim which lies at its foundation. That the plaintiff, after receiving the injury complained of, which crushed one of his hands so completely as to make subsequent amputation necessary, should deliberately request a co-employee to hold his lantern in proper position so that he could examine and ascertain the cause of his injury, evinces a control of the nervous system so remarkable and rare that one is inclined to qualify his admiration for the courage displayed with a slight tinge of scepticism. However, the story related by the plaintiff appears to have received the approval of the jury, and their verdict must, therefore, be regarded as removing the case from the realm of controversy so far as any issue of fact is concerned, and consequently the only question which demands our serious consideration is, whether or not the facts testified to by the plaintiff establish any cause of action against this defendant. The most that can be claimed from the evidence, which, so far as it relates to the accident, is confined to the plaintiff’s own testimony, is that this plaintiff, with considerable experience in like occupations, entered into the defendant’s service on the 29th day of March, 1892, and that on that very night while attempting, in the course of his employment, to couple two cars which were coming together upon one of the tracks in defendant’s yard in the city of Rochester, stepped into a hole which had been left between two tracks, and that in his effort to recover himself he involuntarily threw his arm up in such a manner that his hand came between the two cars and was crushed. He says that he then called to a man near him, who, it seems, was the defendant’s witness Smith, to bring his lantern and hold it so that he could see what was the matter, and that he then for the first time discovered this hole, which was about ten inches wide and eight inches deep, and which had the appearance of having been dug out so as to enable some one to tamp the ties, and then left without being refilled.

In considering the question which this state of facts presents it may be assumed that it was the duty of the defendant' to furnish the-plaintiff with a reasonably safe and-proper place in which to prosecute the work required of hinq and there is no pretense that the obligation which thus rested upon the master in this case would not have been firlly met, in the conditions which surrounded the plaintiff at the time he received his injury, but for this hole, for without it the place in which the plaintiff was required to render service was, for aught that appears, as safe as'could reasonably, have been'required, and it was'only rendered unsafe by the intervention of some third person, who was unquestionably a. track hand, and, therefore, a co-servant of the plaintiff, for .whose -negligence the defendant was in no wise responsible unless- it had either actual or constructive notice of the existence of the. defect in. its roadbed. (Filbert v. Del. & Hud. Canal co., 121 N. Y. 207.)

The evidence in the Case is quite meagre so far as the question of notice is concerned, but the record fairly raises the-presumption that this was not regarded as a very serious factor upon the trial. It is a fact, nevertheless, that at the close of the plaintiff’s case, and when the motion for a nonsuit was entertained, there was not a scintilla of evidence to prove- that the excavation had existed an hour prior to the accident. The plaintiff described its appearance which, as. we have-already suggested, indicated that it was occasioned . by some workman in an effort to improve the condition of the roadbed, but when and by whom the plaintiff does not attempt to show. When, however, the defendant was put-to its proof it was made to appear that this track had been frequently and almost daily.' examined by the persons, upon whom that duty rested, and that no .such hole as the one described by the plaintiff had been discovered by them. The case seems, therefore, to be altogether barren of any facts upon which -notice to the defendant Can be predicated, and,, deprived of this element, it is difficult to see how it can be maintained or to find any evidence which will sustain a verdict. (Haskins v. N. Y. C. & H. R. R. R. Co., 29 N. Y. Supp. 274; affd. by the Court, of Appeals, 145 N. Y. 604.)

We are-consequently of the opinion that the judgment and order appealed from should be reversed. ' .

All concurred, except Ward, J., dissenting.