Bossout v. Rome, Watertown & Ogdensburgh Railroad

New York Supreme Court

Bossout v. Rome, Watertown & Ogdensburgh Railroad

10 N.Y.S. 602, 32 N.Y. St. Rep. 884, 57 Hun 589, 1890 N.Y. Misc. LEXIS 878

CourtNew York Supreme Court

DecidedJuly 1, 1890

StatusPublished

Cited by1 cases

This text of 10 N.Y.S. 602 (Bossout v. Rome, Watertown & Ogdensburgh Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bossout v. Rome, Watertown & Ogdensburgh Railroad, 10 N.Y.S. 602, 32 N.Y. St. Rep. 884, 57 Hun 589, 1890 N.Y. Misc. LEXIS 878 (N.Y. Super. Ct. 1890).

Pincite

Opinions

Meewin, J.

The plaintiff was injured on the 12th day of September, 1887, by the collision of a passenger train of the defendant, upon which he was a brakeman, with a freight train of the defendant, at or near the Mill-Street [603]*603crossing, in the city of Watertown. It was alleged that the cause of the collision was the omission of one Joy, an employe of the defendant, and the flagman at that crossing, to give the proper signal to the freight train to stop. This train was coming from the east, and on the main track. The passenger train was coming from the west on the same track, but designed to take the switch near that crossing that would bring it upon the branch leading to Carthage. In order to allow this to be done it was necessary for the freight train to stop far enough eastward to allow the passenger train room to come forward and take the switch. The flagman was there, and made some signal to the freight train, and then signaled the passenger train to come on. The result was that both trains came on, and the collision occurred before the passenger train reached the necessary point to enable it to take the switch. This was at mid-day, and apparently nothing existed to prevent the flagman doing his duty, assuming he was competent. His duty was, before he signaled the passenger train to come on, to see to it that the freight train had fully stopped far enough eastward to'allow the passenger train to take the desired switch. Whether he did this was, we think, upon the evi-. dence, a question df fact. The claim of the plaintiff is that the flagman was incompetent for the performance of the duties intrusted to him; that by rea-' son of such incompetency the accident happened; and that the defendant was negligent in his employment and in retaining him, and therefore chargeable with the r.esúlts of his acts. At tlie close of the plaintiff’s evidence the defendant moved for a nonsuit upon the ground that no negligence was shown on the part of defendant in the employment of the flagman, or that the flagman was incompetent. This motion was at that stage of the case denied. At the close of the evidence it was renewed upon the same grounds. Thereupon the order was made dismissing the complaint, it being suggested that the plaintiff was in a position to be chargeable with knowledge of the flagman’s incompetency,’ and’ that the flagman had in fact stopped the freight train, and was therefore not negligent.

A careful consideration of the evidence, as it is presented before us, leads .to the conclusion that the case should have been submitted to the jury. It was a question of fact whether the collision was caused by the negligence of the flagman, whether such negligence was due to his incompetency, and whether the defendant was guilty of negligence in employing or retaining him. The defendant was bound to exercise reasonable care in such employment, having respect to the particular duties and responsibilities of this locality, and if it failed to do this, and loss occurred by reason of such failure without fault on the part of the plaintiff, the defendant would be chargeable. Baulec v. Railroad Co., 59 N. Y. 362. It was also a question of fact whether the plaintiff, by reason of his opportunity of seeing the flagman, in the performance of his duties, was chargeable with knowledge of his incompetency.

The defendant further claims that a release executed by the plaintiff on the 13th January, 1887, is a bar to this action. This point was not taken on the motion for a nonsuit. This release was executed while the plaintiff was in the employ of the defendant, and is in form like the one in Purdy v. Railroad Co., 5 N. Y. Supp. 217, decided by this court. The circumstances of this case do not, upon this subject, vary materially from the Purdy Case. The point, therefore, is not well taken. Judgment reversed upon the exceptions, and new trial ordered; costs to abide the event.

Hardin, P. J„ concurs.

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Meewin, J.

The plaintiff was injured on the 12th day of September, 1887, by the collision of a passenger train of the defendant, upon which he was a brakeman, with a freight train of the defendant, at or near the Mill-Street [603]*603crossing, in the city of Watertown. It was alleged that the cause of the collision was the omission of one Joy, an employe of the defendant, and the flagman at that crossing, to give the proper signal to the freight train to stop. This train was coming from the east, and on the main track. The passenger train was coming from the west on the same track, but designed to take the switch near that crossing that would bring it upon the branch leading to Carthage. In order to allow this to be done it was necessary for the freight train to stop far enough eastward to allow the passenger train room to come forward and take the switch. The flagman was there, and made some signal to the freight train, and then signaled the passenger train to come on. The result was that both trains came on, and the collision occurred before the passenger train reached the necessary point to enable it to take the switch. This was at mid-day, and apparently nothing existed to prevent the flagman doing his duty, assuming he was competent. His duty was, before he signaled the passenger train to come on, to see to it that the freight train had fully stopped far enough eastward to'allow the passenger train to take the desired switch. Whether he did this was, we think, upon the evi-. dence, a question df fact. The claim of the plaintiff is that the flagman was incompetent for the performance of the duties intrusted to him; that by rea-' son of such incompetency the accident happened; and that the defendant was negligent in his employment and in retaining him, and therefore chargeable with the r.esúlts of his acts. At tlie close of the plaintiff’s evidence the defendant moved for a nonsuit upon the ground that no negligence was shown on the part of defendant in the employment of the flagman, or that the flagman was incompetent. This motion was at that stage of the case denied. At the close of the evidence it was renewed upon the same grounds. Thereupon the order was made dismissing the complaint, it being suggested that the plaintiff was in a position to be chargeable with knowledge of the flagman’s incompetency,’ and’ that the flagman had in fact stopped the freight train, and was therefore not negligent.

A careful consideration of the evidence, as it is presented before us, leads .to the conclusion that the case should have been submitted to the jury. It was a question of fact whether the collision was caused by the negligence of the flagman, whether such negligence was due to his incompetency, and whether the defendant was guilty of negligence in employing or retaining him. The defendant was bound to exercise reasonable care in such employment, having respect to the particular duties and responsibilities of this locality, and if it failed to do this, and loss occurred by reason of such failure without fault on the part of the plaintiff, the defendant would be chargeable. Baulec v. Railroad Co., 59 N. Y. 362. It was also a question of fact whether the plaintiff, by reason of his opportunity of seeing the flagman, in the performance of his duties, was chargeable with knowledge of his incompetency.

The defendant further claims that a release executed by the plaintiff on the 13th January, 1887, is a bar to this action. This point was not taken on the motion for a nonsuit. This release was executed while the plaintiff was in the employ of the defendant, and is in form like the one in Purdy v. Railroad Co., 5 N. Y. Supp. 217, decided by this court. The circumstances of this case do not, upon this subject, vary materially from the Purdy Case. The point, therefore, is not well taken. Judgment reversed upon the exceptions, and new trial ordered; costs to abide the event.

Hardin, P. J„ concurs.

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10 N.Y.S. 602, 32 N.Y. St. Rep. 884, 57 Hun 589, 1890 N.Y. Misc. LEXIS 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bossout-v-rome-watertown-ogdensburgh-railroad-nysupct-1890.

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