Frank Sanders, Respondent, v. New York Central Railroad Company, Appellant

Frank Sanders, Respondent, v. New York Central Railroad Company, Appellant. [MAJORITY] Judgment and order affirmed, with costs. All concur, except Crouch and Taylor, JJ., who dissent upon the ground that the verdict is against the weight of the evidence on the question of whether the accident actually occurred as'claimed, and on the question of whether plaintiff’s physical condition was proximately due to the alleged accident, and on the further ground that in any event it was error to charge that if, when the engine was turned over to plaintiff, the curtain was rolled up on top of the vestibule, the jury could find that it was not in proper condition and safe to use, and that, if they so found, the defendant was just as liable as if the curtain had fallen by reason of a defect in the hooks. Assuming that the curtain is an appurtenance, if it was, in itself, in proper condition and safe to operate, we think it did not become otherwise within the act merely because it was permitted to remain in a position where vibration might cause it to fall. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ. See Federal Locomotive Boiler Inspection Act of 1911 (36 U. S. Stat. at Large, 913, chap. 103), § 2, as amd. by 38 id. 1192, chap. 169, § 1. Since amd. by 43 id. 659, chap. 355, § 2. Verdict was for $45,000.— [Rep.