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Lewis v. New York, Ontario & Western Ry. Co.

Supreme Court of New York, Appellate Division

July 11, 1911

URIAH H. LEWIS, Respondent,
v.
NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Appellant.

APPEAL by the defendant, the New York, Ontario and Western Railway Company, from a judgment of the Supreme Court

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in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 10th day of January, 1911, upon the verdict of a jury for $2,000, and also from an order entered in said clerk's office on the 24th of January, 1911, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

P. W. Cullinan, for the appellant.

O. M. Reilly, for the respondent.

KRUSE, J.:

A load of baled hay consigned to plaintiff's employer was being unloaded by the plaintiff and other workmen under his direction. After the door of the car was opened far enough two bales fell, one after the other, striking the plaintiff and injuring him.

The car was loaded by the consignor and transported by the defendant from the station where it was loaded to the station where it was being unloaded. The plaintiff seeks to recover for the personal injuries thus sustained by him, because, as he claims, the hay was not properly loaded. It is claimed that instead of standing the bales on end, they should have been laid down and piled one upon the other, or that there should have been cleats across the door opening or false doors so as to prevent the hay from resting against the door of the car.

I think actionable negligence cannot be predicated against the defendant in the way the hay was loaded in the car. So far as there was any danger of the hay falling from the car, the dangerous condition, as it seems to me, was created by the men in unloading. I do not see how it would make it any safer to pile one bale upon another, if piled as high as a bale standing on end; nor is it clear to me how, as to the unloaders, cleats across the opening or a false door would have made any difference, for the cleat would have had to be removed or the door opened in order to get the hay out. Of course, the situation and danger might be more apparent to the unloaders, but it would have been apparent to the plaintiff and his men here if they had looked. The door had been opened sufficiently wide before the hay fell, so it could be seen that the bales were standing on end and that there was no cleat or false door to

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keep the hay back from against the door. It would seem that if the plaintiff and his men had been reasonably careful for their own safety in the work of unloading the hay, the accident would not have occurred.

I think the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except SPRING, J., who dissented ...


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