Mary Ann Piper, Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent

Mary Ann Piper, Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent. (Argued February 24, 1874; decided March 24, 1874.) This was an action to recover damages for the death of Thomas Piper, plaintiff's intestate, alleged to have been occasioned by defendant’s negligence. ■ Piper was an engineer in defendant’s employ ; his engine ran off the track in consequence of a misplaced switch and he was killed ; a train had passed over in safety about a half hour previous; bn examination, after this accident, it was found that the lever or upright was locked and stood perpendicularly, indicating the switch was right, but that the bolt connecting the lever with the horizontal bar had been removed and the switch rails thrown out of place. The switch was what was known as a common switch, there had been formerly in the place a patent switch over which, when misplaced, a train can pass in safety; but the grade of the branch track was descending and a car standing thereon had, before the change, got started and ran over the patent switch on to the main track and came near colliding with a train, and thereupon defendant’s track-master changed the switches. He testified that Piper complained to him of the patent switch, insisting that it was unsafe in that locality and that the change was made at his request. This testimony was undisputed. Plaintiff was nonsuited. The principal point urged here, was, that the question as to whether the patent switch was taken out at the request of Piper should have been submitted to the jury; no specific request to submit it was made on the trial. Held, that as the evidence was wholly uncontroverted by circumstances or otherwise, and no question having been raised thereon at the trial, the not submitting the question to the jury was no error; that independently of this question there appeared to have been sufficient reasons to change the switch, and there was no evidence which would justify a jury in finding such negligence, on the part of defendant, as is necessary to sustain an action by an employe against his employer, and that the nonsuit therefore was proper. E. W. Paige for the appellant. S. W. Jackson for the respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for affirmance. All concur. Judgment affirmed.