Appeal from Trial Term, Monroe County.
Action by Max F. Utess against the Erie Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.
Adelbert Moot, for appellant.
P. Chamberlain, for respondent.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
MCLENNAN, P. J.
The material facts are not in dispute. The accident which is the subject of this action occurred on the 19th day of November, 1906, at about 8:40 a. m., in the yard or terminal of the defendant, situate in the city of Rochester, N. Y., extending north and [115 N.Y.S. 390] south, parallel with and adjacent to the Genesee river. The plaintiff, who at the time was 33 years of age, had been in defendant's employ for about 21 years. He began as water boy, and successively was employed as trackman, construction foreman, sectionman, yard foreman, brakeman, and switchman. During all of such time his place of employment was on the Rochester Division of the defendant, which extends from Rochester to Corning, or in its yard or terminal in the city of Rochester, and, therefore, was familiar with its physical situation and with the manner in which the business of the defendant was conducted therein. At the time of the accident the plaintiff was employed as switchman in the yard, and it was a part of his duty to flag trains coming into it, and to indicate to the engineers of such trains when they could safely take the track leading to the station, and in the performance of such duty it was necessary for the plaintiff to go to a point in the yard at such distance from the station as would enable the engineer of an incoming train upon getting such signal to stop and so avoid coming in collision with any train which might be at the station. The plaintiff was not required to stand at any particular distance from the station. He was at liberty to select such place as he saw fit, within reasonable limits, except that it was necessary for him to be on the right-hand side of the train in order that his flag could be readily seen by the engineer.
It appears that, at the place selected by the plaintiff (he might have selected any other place within a reasonable distance in either direction) at which to stand while flagging the train in question, there was only a distance of about seven feet from the outside rail of the track on which a passenger train was approaching from the south and the bank of the Genesee river, and that at such place there were some railroad rails piled between the track and the river and parallel with the tracks, and also a couple of piles of earth, about two wheelbarrow loads in each, which had been left or made by defendant's employes when engaged in electrifying or preparing to electrify its road at that point. The plaintiff stood about four feet from the track upon which the train was approaching. He signaled the engineer to stop, because another train was occupying the track at the station. The engineer slowed down his train a little, when the plaintiff discovered that the train at the station had taken the siding and that the track was clear. He then signaled the engineer to proceed, which he did in the usual manner, going at the rate of 25 to 30 miles per hour. As the tender passed the plaintiff he discovered some lumps of coal falling from it, and one piece struck him in the face with such force as to daze him. He staggered backward, and, in attempting to regain his footing, stumbled over the piles of dirt or rails, and in some manner came in contact with one of the moving cars, which struck him upon the shoulder. He was thrown down, his arm was crushed in such manner as to make amputation necessary, and he sustained other very serious injuries.
The plaintiff, who was the only witness called who saw the accident, testified upon his direct examination as follows:
" Q. Did you notice anything in regard to the condition of that tender upon the train as it came in? A. Not until I saw some coal rolling off of it. Q. What did you notice in that regard? A. As the front end of the engine got [115 N.Y.S. 391] to me, I gave the engineer a cross-over signal, and of course the train was coming right along, and about to me, and after I gave the engineer the cross-over signal I noticed some coal coming off from the tank. Q. The tender that is attached to the engine? A. Yes; and I partly turned my back toward the engine trying to avoid the coal, and as I did so I just about got my back turned toward the engine and I got struck with a piece of it on the side of the face, which dazed me, and I started to tumble down this bank. At that time I began staggering around, and there was a couple of piles of dirt laid there. I should judge just a couple of wheelbarrow loads in a pile, where they had been setting up electric poles, and mixing the concrete, and I staggered around on one of those piles of dirt, and the next thing I knew I got struck on the left shoulder, and that is as far as I can tell anything about it. Q. Describe to the jury the condition of that tank as you observed it when you saw the coal falling off-the condition of the coal on the tank. A. It would be rather a hard matter to say, although as this coal rolled off, it all happened so quick it didn't give me much time to look the tank over, although as the coal rolled off I saw these pieces rolling off of the top of the tank, and whether the piece that struck me came off from the top of the tank or out of the gangway, it was impossible to say. The tank was full, as near as I could see, what I could see of it during that instant. The next I knew anything to remember anything, I was up at the hospital."
The witness on cross-examination states that he did not know who had left the piles of dirt or the pile of rails upon the defendant's right of way; that he did not know whether it was done by a telephone line, by a telegraph line, or the railroad line; and also upon cross-examination he says:
" As to this piece (of coal) that hit me, I couldn't tell whether it came from the top of the engine or from the gangway."
And again, on redirect examination, the witness says:
" The others (pieces of coal) that I dodged came from the car. This was almost instantaneous. I couldn't say whether it was coming from the gangway or the top of the tender."
Other witnesses called by the plaintiff testify that the tender was chuck full of coal; that the coal lay all over the top of the tank on the river bank side five or six inches over the top of the board at the side. One witness called by the plaintiff testified on cross-examination that all the tenders come down there chuck full of coal, and that this one was just like the rest; that there was no difference in the way ...