Bradley v. New York Central Railroad

3 Thomp. & Cook 288

• Court: New York Supreme Court
• Decided: April 15, 1874
• Status: Published

Opinion

E. Darwin Smith, J.

The plaintiff was not the servant, in the ordinary sense, of the defendant. He was employed by Conley, the defendant’s track-master, at the place where the accident and injury occurred, to use his team temporarily during the day for a special work, to scrape the snow from, the defendant’s railroad track, and while so employed received the injury for which this action was brought. He testified that Conley told him when he engaged him to work, that he would let him know the time the trains would come, and that he had no warning of the arrival of the train or any notice of any danger and heard no bell rung or whistle sounded.

The question whether this was the arrangement under which the plaintiff went to work was fairly submitted to the jury, and also the question of the plain tiff’s want of due care or contributory negligence, and the verdict settles these questions.

There can be no doubt, we think, that the plaintiff had a right to rely upon the assurance of Conley that he would let him know when the. trains were coming and that he might trust to such warning so as to be relieved from the necessity of being constantly on the watch himself for such trains, and we have no doubt Conley was fully authorized as incident to his right to employ laborers and set them at work for the defendant, to give such assurance.

We do not see why the verdict is not fully warranted by the evidence, and see no error in the ruling or charge at the circuit.

The order denying the motion for a new trial and the judgment should therefore be affirmed.

Gilbert, J., dissented.

Judgment affirmed.