THOMAS J. EDGAR, Respondent,
THE BROOKLYN HEIGHTS RAILROAD COMPANY, Appellant, Impleaded with TRANSIT DEVELOPMENT COMPANY, Defendant.
APPEAL by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of November, 1910, upon the verdict of a jury for $6,500, and also from an order entered in said clerk's office on the 3d day of December, 1910, denying the said defendant's motion for a new trial made upon the minutes.
D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
Clifford C. Roberts [Thomas H. Calhoun with him on the brief], for the respondent.
The plaintiff ought not to succeed in this action. His complaint alleges that he was in the employ of the Brooklyn Heights Railroad Company on or about May 30, 1907, and for some time prior thereto, as depot master in the car barn of the defendant. (The second defendant appears to have had no relation to the accident, and will not be considered in this discussion.) The actionable negligence is alleged as follows: 'That at the time and place aforesaid, while the plaintiff was in the proper discharge of his duties as an employee of the defendant, The Brooklyn Heights Railroad Company, and while
crossing the car tracks running along and over the floor of said car barn or station, the defendants, their agents and servants, negligently, carelessly and recklessly operated a car or shifter on a cross rail situated and running along and over the floor of said car barn or station in the rear thereof, in such manner that said car or shifter operated as aforesaid, ran into and struck the plaintiff, throwing him violently to the floor of said car barn and inflicting upon him serious and permanent injuries.' 'That said accident and injuries were caused by reason of the negligence, carelessness and recklessness of the defendants, their agents and servants, and without any contributory negligence on the part of this plaintiff, and because of defects in the tools, machinery and appliances of said car or shifter, and by further reason of the fault, negligence, negligent ways and omission of duty of the defendant, The Brooklyn Heights Railroad Company, in that it failed to furnish the plaintiff with a safe place in which to perform his work.' The complaint then alleges the service of the notice required by the Employers' Liability Act (Laws of 1902, chap. 600), and demands judgment for the damages.
Upon the trial the plaintiff testified: 'I was working at that time as night depot master. I had been night depot master in this barn about ten days. Before that I was a day depot master in the same barn for about two months. My duties in the barn were to receive cars that were sent there from other depots, also to send cars away as ordered to be shifted to other depots. * * * This car barn was used for the storage and repair of cars. The barn ran from Second to Third avenue and from Fifty-eighth to Fifty-ninth street. The barn from Second to Third avenue was about 600 feet long. * * * The short way was about 200 feet. * * * There were fourteen tracks in the barn, coming in off Third avenue.' It appears from his testimony that this car barn had three floors, and that the cars came into this barn on the third floor, where the accident occurred, from Third avenue at grade or practically so. Fourteen of these tracks came into the barn, and cars could be switched from track 1 to 2, but if a change was desired from track 1 to 3, it was necessary to use the shifter which the defendant had installed for that purpose. This
shifter consisted of a skeleton car, with a platform upon it, operated upon a railroad track running at right angles with the switch tracks on which the cars entered. This track ran the entire length of the building from Fifty-eighth to Fifty-ninth streets, and upon the platform of the shifting car there were rails extending out from the sides, tapered down so that when the shifter was placed opposite the switch tracks, these arms came into close connection with the switch rails and the cars could be moved upon the platform and then taken to the other tracks and pushed off onto such tracks. This shifting apparatus was operated by an electric motor, controlled by the operator, and was in practically constant use in shifting cars from one track to another in the practical work of making repairs and sending out the cars, and it was the plaintiff's duty to superintend this car barn, though it appears that the actual work of making the repairs was in the charge of one Entwistle, who was in the employ of the Transit Development Company. This cross track on which the shifter ran was well toward the back or Second avenue side of the car barn, and the space between the shifter and the repair shop was used principally for the storage of cars and repair work. It appears from the evidence, which was received over defendant's objection and exception, that different styles of shifters were used upon the other two floors of the car barn, and that the one on the third floor, which was put in as an improvement, had been in operation for at least four months at the time of the accident, and that the plaintiff was entirely familiar with its operation, though he did not usually operate the same. After describing this shifter and the others in detail, the plaintiff continued: 'Coming down to the night of my accident I got to work at seven o'clock in the evening. My hours were from seven at night till seven in the morning. After I had got there to the barn, there were cars in there. First off, I gave the instructions to the boss car cleaner about cleaning his cars, then I proceeded to the rear of the barn towards Second avenue. * * * At that point I met the night shop foreman, James Entwistle,' and had a conversation with him in reference to getting out two cars which he had orders to send away. The witness then described how certain
cars were moved around to clear the way for moving the cars which he desired to get out, and says: 'I got down off the car and turned to my left. Then I started to walk over towards Third avenue. I walked about half a car length and just as I got to the step of the car--of the car that was standing on track four, I was struck by the arm of the shifter, which went under the platform of this standing car. I was thrown down, and I was severely hurt. I did not see the shifter come along. It came from Fifty-ninth street. The light there was very dim, I could not see. * * * I did not hear any warning. The first thing I knew I was thrown down.' The evidence shows that the plaintiff, familiar with the working of this shifting device, asked Entwistle to move a car from one track to another by the use of the shifter; that while this was being done he, with the assistance of another man, moved two other cars along on one of the switches, and that having placed the last car to his satisfaction he started toward Third avenue, at a point where the shifter was out of his sight by reason of a car located upon track 4, and that the arm of the shifter, coming back for the purpose of completing the work, in its natural and usual operation, passed under the front of the car obscuring the vision of the plaintiff, causing the accident. There is not a particle of evidence to show that the shifter was negligently or carelessly operated, or that there was any defect in its construction or in its machinery, or in any other respect. It is true that there was testimony that there was no headlight upon the shifter, that it had no gong and no brake, but there was no evidence that there was any use of a brake, or that any other similar apparatus in use was equipped with a headlight or with a gong, or that any one had ever suggested ...