Francis J. Knapp, Respondent, v. Niagara Junction Railway Company, Appellant

Francis J. Knapp, Respondent, v. Niagara Junction Railway Company, Appellant. Fourth Department, January 22, 1916. Railroad — negligence—injury to brakeman while coupling cars — charge. Where a brakeman, who was injured while engaged in coupling cars, has testified that the drawbar of one of the cars being out of alignment he attempted to push it into position with his foot at a time when with each hand he had hold of the grabirons of the cars to be coupled and the court has charged that the plaintiff cannot recover if the cars were moving at the time he attempted to straighten the drawbar, it is not error for the court to refuse to charge in effect that there can be no recovery if the two cars when at a standstill were from four to six feet apart if, under the testimony, there is a question of fact as to the distance between the cars before they were moved together to couple them. If the defendant intended its request to mean that it was incredible as a matter of law that the plaintiff could have taken hold of both grab-irons when they were separated by séven or nine feet, as claimed by defendant, it should have called the court’s attention to that interpretation of its request. Motion by the defendant, Niagara Junction Railway Company, for leave to appeal to the Court of Appeals from the order of the Appellate Division, Fourth Department, affirming a judgment of the Supreme Court herein in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 12th day of April, 1915, upon the verdict of a jury for $10,000, and also affirming an order entered in said clerk’s office on the 18th day of May, 1915, denying defendant’s motion for á new trial made upon the minutes. Evan Hollister, for the motion. Augustus Thibaudeau and E. M. Ashley, opposed. [MAJORITY — Per Curiam:] Per Curiam: Only one of the questions which we are asked on this motion to certify for review by the Court of Appeals seems to us to invite particular attention. This is whether the trial court erroneously refused to charge at appellant’s request that “If the drawheads or couplers of the flat car and the box car were four to six feet apart when the two cars were at a standstill, the' second time, so that the plaintiff could not have reached the hand-holds on both cars until they had come closer together, then their verdict must be for the defendant of no cause of action ? ” Plaintiff was a brakeman employed by the defendant at the time he was injured. The injury occurred while he was engaged in the operation of coupling cars. Two previous attempts to couple the cars had failed because the drawheads were not in proper alignment. When the plaintiff was injured he was trying to push with his left foot the drawhead of one of the cars over so that it would line up with the drawhead of the other car with which the coupling was to be made. The crucial question in the case was whether the engine and the cars attached to it were moving towards the car with which the coupling was to be made at the time plaintiff tried to push the drawhead over. The court charged in effect that, if the engine with the cars which were coupled to it was moving at the time, plaintiff could not recover. Plaintiff’s evidence tended to show that the cars which were to be coupled both came to a stop after the second ineffectual attempt to couple them had been made, with their ends so near each other that he took hold of the grabiron on the end of the car to his left with his left hand and the grabiron on the end of the car to his right with his right hand in order to get a purchase in his effort to shove the drawhead over with his foot. The evidence is conflicting as to the distance the ends of the two cars were apart when they stopped after the second attempt to couple them had failed. Defendant’s evidence tends to show that they were six to nine feet apart, while plaintiff testifies they were separated hy only about four feet. It may be conceded that, if the ends of the cars were separated by even six feet, plaintiff could not have taken hold of the grabiron on the end of each car to secure any efficient purchase until they had been moved nearer each other. Referring to the request to charge, it appears to be pointed to the necessary inference that, if the ends of the cars were before the third movement to couple them was begun, separated by some seven to nine feet, then it would necessarily follow that the movement had been begun and partially completed before the ends of the two cars could have been near- enough to each other to make it possible -for plaintiff to take hold of the grabiron at the end of each car; and, therefore, the inference followed that the car was moving at the time plaintiff took hold of the irons and attempted to push the drawhead over. That this was the view the learned trial court took of the purpose of the request is plain from his statement in disposing of the request, the effect of which was that so far as that inference was to be drawn a question of fact was presented for the jury’s decision. In this view we concur. Appellant, however, now urges that the purpose and effect of the request was to require the court to determine as matter of law that it was incredible that plaintiff could have taken hold of both grabirons when they were separated hy seven to nine feet. The request as made was susceptible to the meaning given it by the trial court. If counsel intended by the request to present the point now urged it would seem that the court’s attention should have been directed to the meaning now claimed for it. The motion is denied, with ten dollars costs and disbursements. All concurred. Motion for leave to appeal to Court of Appeals denied, with ten dollars costs.