Gage v. Delaware, Lackawanna & Western Railroad

21 N.Y. Sup. Ct. 446

• Court: New York Supreme Court
• Decided: June 15, 1878
• Status: Published

Opinion

Hardin, J.:

Our attention has been called, since the argument of this case, to the decision made by the Court of Appeals in Mehan v. Bing. R. R. Co., in which that court lay down the rule that the employer is bound to furnish appliances and machinery and road-beds reasonably safe for the use of its employes, and that for such omission of duty a liability exists to those injured without negligence contributing to the injuries. The principles laid down in that case are applicable to this one. The trial judge should, therefore, have submitted to the jury, first: The question of fact in respect to the extent and character of the defects revealed by the evidence; second, whether the defendant had notice thereof before the injuries happened; third, whether the husband of the plaintiff was free from negligence contributing to the injuries. (Arkerson v. Dennison, 117 Mass., 409; Laning v. N. Y. C. & H. R. R. R. Co., 49 N. Y., 532; Plank v. Same, 1 N. Y. S. C. [T. & C.], 319; affirmed, 60 N. Y., 607; Snow v. Housatonic R. R., 8 Allen, 441; Flike v. N. Y. C. & H. R. R. R. Co., 53 N. Y., 553; Corcoran v. Holbrook 59 id., 519; Malone v. Hathaway, 64 id., 5; Tinny v. B. & A. R. R. Co., 62 Barb., 218; Faulkner v. Erie Railway Co., 49 id., 324; Anderson v. Rome, W. & O. R. R. Co., 54 N. Y., 334.)

The nonsuit was, therefore, improperly granted and must be set aside and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.