Sutton v. New York, Lake Erie & Western Railroad

21 N.Y.S. 312, 50 N.Y. St. Rep. 514

• Court: New York Supreme Court
• Decided: December 12, 1892
• Status: Published

Opinions

BARNARD, P. J.

The plaintiff was a repairer of cars in the defendant’s employment, at Newburgh, while the cars were in the yard. In November, 1890, there was a train of cars upon the side track in the yard, and one of them needed .repairs. Sutton went under the car while it was upon the track to make the repairs. After .he had been at work for some time, one Ryan, the conductor in charge of a crew of men in the yard, told plaintiff to get out from under the car until he coupled the engine to the train. He did so. Ryan then told plaintiff that he would have to stop some time until a passenger train came out ahead, and that he must go back and fix the car, and that he (Ryan) would let him (Sutton) know when he “would be going to start out.” The car under which the plaintiff was working was standing alone, and separated a few feet from the rest of the train. Ryan started up his train. Some cars became detached at the rear end of the train, and, in backing the head of the train to attach it to the rear end so broken off, the cars were shoved violently against the plaintiff’s car, and he was very seriously injured. Before the engine was put on the train there was a blue flag at the head of the train, which was the proper signal to protect the plaintiff while at work. Ryan took this down when he put on the engine, and did not put it up again. There was proof given tending to show that Ryan had been either extremely negligent or incompetent in the performance of his duties., On two or three previous occasions he had disregarded the blue flag which insured workmen against danger, and the general superintendent at the yard had notice of these instances of incompetency. The superintendent promised to discharge Ryan, and that the plaintiff must return to his work. There was proof that the general superintendent was afraid to send men to work, because Ryan was ■ going into the flags and running the men down. There was proven that a brake in the car next to the plaintiff would not work; that with a good brake the car could be stopped in about eight feet, which might have saved plaintiff, and this' broken brake had been in plain sight in the yard for two or three days before. The master was bound to furnish competent coemployes, and to furnish good appliances for the employment. This case proven is supported in respect to the incompetency of the defendant’s employe Ryan by the cases of Baulec v. Railroad Co., 59 N. Y. 356; Coppins v. Railroad Co., 122 N. Y. 557, 25 N. E. Rep. 915. If the accident was caused by a.defective brake, the cases are numerous that the master is liable therefor. The question of the negligence of the plaintiff was a proper one for the jury. Kain v. Smith, 89 N. Y. 385. The case upon the verdict of the jury in favor of the plaintiff upon the disputed facts established an acknowledged exception to the rule that an employe cannot maintain an action for the negligence of a coemploye against the common trustee. The judgment and order.denying new trial should be affirmed, with costs.