McNeil v. New York, Lake Erie & Western Railroad

New York Supreme Court

McNeil v. New York, Lake Erie & Western Railroad

24 N.Y.S. 616, 78 N.Y. Sup. Ct. 24, 54 N.Y. St. Rep. 201, 71 Hun 24

CourtNew York Supreme Court

DecidedJuly 28, 1893

StatusPublished

Cited by1 cases

This text of 24 N.Y.S. 616 (McNeil v. New York, Lake Erie & Western 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

McNeil v. New York, Lake Erie & Western Railroad, 24 N.Y.S. 616, 78 N.Y. Sup. Ct. 24, 54 N.Y. St. Rep. 201, 71 Hun 24 (N.Y. Super. Ct. 1893).

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Opinion

BARNARD, P. J.

Arthur McNeil, on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant, and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between the guard rail and the main rail. . The negligence claimed on the part of defendant is that the company did not block the guard rail, which is done by placing in the open space between the two rails something which would prevent the foot of an employe from being caught between the two rails. The rule is that an employe assumes the risk of the employment. Kern v. Refining Co., 125 N. Y. 50, 25 N. E. Rep. 1071; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. Rep. 573. The master is not bound to furnish the best ldnd of appliances, or to give an extreme character to the structure, so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked, and some not. The case cannot be distinguished from the case of Appel v. Railroad Co., 111 N. Y. 550, 19 N. E. Rep. 93. The nonsuit was therefore right, and the judgment should be affirmed, with costs. All concur.

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BARNARD, P. J.

Arthur McNeil, on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant, and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between the guard rail and the main rail. . The negligence claimed on the part of defendant is that the company did not block the guard rail, which is done by placing in the open space between the two rails something which would prevent the foot of an employe from being caught between the two rails. The rule is that an employe assumes the risk of the employment. Kern v. Refining Co., 125 N. Y. 50, 25 N. E. Rep. 1071; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. Rep. 573. The master is not bound to furnish the best ldnd of appliances, or to give an extreme character to the structure, so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked, and some not. The case cannot be distinguished from the case of Appel v. Railroad Co., 111 N. Y. 550, 19 N. E. Rep. 93. The nonsuit was therefore right, and the judgment should be affirmed, with costs. All concur.

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Bluebook (online)

24 N.Y.S. 616, 78 N.Y. Sup. Ct. 24, 54 N.Y. St. Rep. 201, 71 Hun 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneil-v-new-york-lake-erie-western-railroad-nysupct-1893.

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