IRVING C. REYNOLDS, by CHARLES REYNOLDS, His Guardian ad Litem, Respondent,
LEHIGH VALLEY RAILROAD COMPANY, Appellant.
APPEAL by the defendant, the Lehigh Valley 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 Niagara on the 25th day of March, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.
James McCormick Mitchell, for the appellant.
Augustus Thibaudeau and Eugene M. Ashley, for the respondent.
The plaintiff, a young man nineteen and one-half years of age, in the employ of the defendant as an extra brakeman, jumped off the running board of an engine on which he was at work, about seven-thirty o'clock in the morning of September 18, 1909, in the vicinity of La Salle, in the county of Niagara, and under the direction of the engineer of the train, and he fell and was run over by the train and his leg was crushed so that it had to be amputated, and he charges that the defendant was responsible for his injuries.
The plaintiff had been reared on a farm until he was seventeen or eighteen years of age, and was then employed by the defendant in its roundhouse at Manchester, and his work consisted in blowing flues and running the turntable, and he had no experience in the operation of freight trains or in jumping on or off from them. In September, 1909, he applied to the yardmaster of the defendant at Manchester for the position of brakeman and was permitted, without compensation, to go on the through freight train from Manchester to Niagara Falls, about 110 miles, with a view of learning the business of freight brakeman. He was on the train during three trial trips. The engineer in control of this freight train was a man named Orr, and the plaintiff did but little work while on these trial trips, and the regular brakeman performed the work under the direction of the engineer. The plaintiff, however, was directed by the engineer once or twice during these trial trips to jump off the running board of the engine when it was in motion and when it was going slowly, and go back to the caboose on some errand to the conductor. After these trial trips he was employed as an extra brakeman, and at the time he received his injuries was on the first half of the fourth trip. Orr was the engineer all this time and he alone gave the orders to the plaintiff in the performance of his duties. The train was a through freight, containing thirty-five or thirty-six loaded box cars; and on the morning of the accident, before reaching tower 61 west of La
Salle, the engineer was advised that there was a hot journal on the tender of his engine.
Tower 61 was at the east end of a long siding, and the next tower to the west was tower 61A, which was at the west end of this siding, and the distance between the two towers was about one mile. Upon receiving this information the engineer concluded he could not enter the siding at its easterly end, and so decided to pass beyond the westerly end of the siding and back in upon it and stop the fire in the hot journal. He was also induced to act in this way for the reason that an express train was following him from seven to ten minutes in the rear. He testified that his train was running at twenty-five or thirty miles an hour as it passed tower 61A and he then shut off the steam. Just as the engine had passed the westerly end of the siding he gave a direction to the plaintiff to go back to Rhodes, the conductor, and have him set out the 'dope' pail in order that the plaintiff might pick it up and deliver it to the engineer to use in stopping the fire in the hot journal.
There is a controversy as to this direction. The plaintiff was in the cab on the opposite side and four or five feet distant from the engineer at the time the direction was given. The plaintiff testified that the engineer made his order as follows: 'Drop off here and go back to the caboose and tell Rhodes to set out the dope pail--we are going to back up here and pack that box.' The engineer's version of the direction is: "Mooch back now; that journal is hot; ' I says 'mooch back and tell him when we slow down and get off and go back and tell the conductor when we get on the siding to set the dope pail out so we can pack that journal."
The plaintiff, understanding and believing that the direction called for immediate action, climbed down between the tender and the engine onto the running board, took hold of the rail with his right hand, looked carefully to see if there were any obstacles in the way, and observing that the ground was level, with nothing to interfere with his alighting, and believing that he could do so with safety, jumped off. He ran along a short distance, was thrown to the ground and injured in the manner above stated.
The few times when the plaintiff had, under the direction of
the engineer, jumped from the train, it was going more slowly than on this occasion, although, as I have stated, he thought he was in no peril in jumping off. He had had very little experience in this business and had received no instructions whatever, either from the engineer or from the conductor, or from any one in fact, in regard to jumping off from the train. He had seen other brakemen do this frequently at the command of the engineer, although it does not appear that the train was running rapidly at any time the other brakemen were alighting from it. When the plaintiff alighted he pursued the same manner adopted by his coemployees in getting off the running board and precisely as he had done the two or three times he had jumped off before. He knew nothing of this siding. The freight train on which he had been riding had never gone upon it and he had no knowledge or information where it was located and did not realize that the train was to back upon it.
No one testified to the order given by the engineer, except these two men, the plaintiff and Orr, the engineer. The latter testified that he did not expect that the plaintiff would get down on the running board and jump off the train when it was running rapidly. He further says that by the expression 'mooch back' he intended that the plaintiff would walk back on the top of these thirty-five or thirty-six cars and reach the caboose in that way. There is no hint that he ever explained to the plaintiff what the expression 'mooch back' signified, and he does not seem to be very clear himself as to its signification; and the conductor is also in the dark as to the precise meaning of this forcible expression. Nor did he advise the plaintiff not to get on the running board.
The engineer testified that the train at this time was going from twenty-five to thirty miles an hour and that it had not slacked at all since he shut off the steam at tower 61A, which is entirely credible, for the distance could only have been two or three rods, for when Reynolds was found after the accident he was lying only eight or ten car lengths west of tower 61A. In fact the engineer testified that the train had not begun to lessen its speed for two minutes after the direction he ...