Luigi Onesti, Appellant, v. Central New England Railway Company, Respondent

Luigi Onesti, Appellant, v. Central New England Railway Company, Respondent. Second Department, October 18, 1907. Railroad—injury to employee in switch yard—act of superintendence — Employers’ Liability Act. A foreman in .the charge of men in'a railroad yard who orders one to. hurry and go between two cars at á time when a switch, engine is “kicking ” cars down the track, whereby he was injured, is engaged in an act of superintendence and.it is for the jury to say whether the act were negligent. When the action for such injury is .brought under the Employers’ Liability Act,. the-negligence óf the foreman .performing acts of superintendence is the negligence of the master', and the questions of assumption of risk by the plaintiff • or of his contributory negligence iñ remaining in the place, knowing it to be dangerous, are questions for the jury. ' Appeal by the plaintiff, Luigi Onesti, from a" judgment of the' Supreme Court in'favor of the defendant, entered in. the office of the clerk of the county, of Orange on the "5th day of Decembér, 1906, upon the'dismissal of the complaint by direction of..the- court at the close of the plaintiffs case. pn a trial at the Orange Trial Term. Hobart S. Bird, for the appellant. Walter C. Anthony [William Greenough with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff was employed by the defendant. He worked in the railroad yard. It wxas four 'miles long and had fourteen tracks. Cars were “ kicked ” down upon these tracks, daily and often, so that many cars stood there. Many men worked there. The plaintiff was.with a gang of men in the,yard' under the direction of a forer man. He directed them what to do, one thing and then another, and they had to cross the tracks among the cars. The foreman was leading them from one place*to another to .do some work. lie directed them to go between two cars standing nea,r • together in order to cross a track. The plaintiff hesitated, and looked to see if the car toward the direction from which the cars were kicked might move, but the foreman told ln'm to go-ahead. He went on and the car did come down against the other car. • His arm was caught and had to be amputated. The kicking engine was at work at the time, and the jury could have found that a car had just been kicked upon that track, and striking the first of a line of five or six cars, of which the one that hit the plaintiff was the last, drove them down, causing the collision that hurt the plaintiff. There was no other movement of cars going on. The "act of the "foreman in directing and hurrying the plaintiff between the cars when a .car was being kicked down that track was an act of superintendence, and it was for the jury to say if it was not negligent. He was in the exercise of his authority and superintendence in leading and directing the men at the time. The rule that such negligence would be the negligence of the master applied to the case, for the action was brought under the Employers’ Liability- Act which contains such ;rule (sec. 1), and also another rule that the question of the assumption of the risk by the plaintiff or of his contributory negligence, by remaining in the place knowing it was dangerous, was a question of fact for the jury (sec. 3). - The judgment should be reversed;- Jenks, Hooker, Rich and. Miller, JJ., concurred. Judgment reversed and pew (rial granted, costs to abide the event,