Margaret Mehan, Administratrix, etc., Respondent, v. The Syracuse, Binghamton and New York Railroad Corporation, Appellant

Margaret Mehan, Administratrix, etc., Respondent, v. The Syracuse, Binghamton and New York Railroad Corporation, Appellant. It cannot be afiiimed, as matter of law, that an engineer, while running an engine upon a railroad, has the same oppoi’tunity as the corporation, or whatever subordinates may represent it, whose duty it is to keep the track in repair, to ascei'tahi and know of defects; and in case of inj3U-y to him, in consequence of such defects, he cannot be deemed guilty of contributory negligence, simply beea3ise he knew that the track was somewhat out of repair. It seeins, however, that if the engineer knew that the track was so badly out of 3'epair that it was dangerous to run over it, by continuing in the employ- ’ ment after such knowledge, he assumed the risk, and the corporation is , not liable for the injiu-y. (Argued February 13, 1878; decided March 19, 1878.) This was an action to recover damages for the death of Peter Mehan, plaintiff’s intestate, alleged to have been caused by defendant’s negligence. Mehan was an engineer in the employ of defendant, and was killed by his engine running off the track. It was not disputed on the trial, but that the track was badly out of repair. The evidence tended to show that, at the place of the accident, the rails were short and insecurely fastened, and that the accident was occasioned by one of these rails being shoved from its place. Defendant’s counsel moved for a nonsuit on the ground that Mehan knew of the defects, and, therefore, could not recover. The motion was denied, and said counsel duly excepted. The court charged, in substance, that if the deceased knew the real nature of the defects in the track, or might or ought to have known them, then he could not recover. Held, no error; and that under the evidence the question was one of fact for the jury, the court laying down the rule above stated. Upon the question of the liability of defendant to its employees the court cited Laning v. FT. Y. O. R. R. Oo. (49 N. Y., 521); Flilce v. B. and A. R. R. Co. (53 id., 549); Ríanla v. FT. Y. O. andH. R. R. Oo. (60 id., 607); Rennet v. Watson, 3 M. & W., 1; Robson v. Orawley, 2 H. & N., 767; FTew Brunswicla R. Oo. v. Boore, 3 id., 257); Gibson v. F. R. Oo. (63 N. Y., 449). Wm. C. Ruger for appellant. D. Pratt for respondent. [MAJORITY — Per Curiam.] Per Curiam. Opinion for affirmance. All concur, except Rapallo, J., not voting; Andrews, J., taking no part. Judgment affirmed.