Frank W. Lyon, Respondent, v. James S. Coleman and Others, Composing the Firm of Coleman, Breuchaud & Coleman, Appellants

Frank W. Lyon, Respondent, v. James S. Coleman and Others, Composing the Firm of Coleman, Breuchaud & Coleman, Appellants. Second Department, January 17, 1908. Master and servant—injury to brakeman—contributory negligénce. In an action against a,master to recover for personal injuries it appeared that the plaintiff was’a brakeman employed on a train running "on a narrow, gauge road to and from a stone crusher operated by the master. The track ran under the stone ’crusher between upright supports having only from six to eight inches clearance from the tracks. One of the cars was loaded with boxes, andtheplaintiff, who was standing upon a step of the engine, admitted that he observed while an eighth of a mile distant from the crusher that the boxes overhung so far as to render it likely that they would hit the uprights if the train passed between them, and he knew it was to pass between them. The boxes struck the uprights and the plaintiff was injured. There was no evidence that he did anything to avert the accident. . ¡V. Held, that the complaint should have been dismissed for failure to show freedom . from contributory negligence. Appeal by the- defendants, James S. Coleman and others, composing the firm of Coleman, Breuchand & Coleman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of June, 1907, upon the verdict of a jury for $6,0.00, and also from an order entered in-said clerk’s office on the 19th day of July, 1907. David McClure, for the appellants. George C. Andrews [Frederick A. Russell, Jr., and Albert W. Emerson with him on the brief], for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The defendants appeal from a- judgment entered on the verdict of a jury and from an order denying a motion for a new trial in an action brought to recover damages for personal injuries alleged to have resulted from the negligence of the defendants, the plaintiff’s mastérs. The defendants were contractors engaged in the con-' struction of the- Croton dam. • The plaintiff was a brakeman employed on a train running on a narrow gauge road in a circle to and from a stone crusher. On the day of the accident a train consisting of an engine and two flat cars — the one next to the engine loaded with boxes and: the other one empty — was hacking- down grade toward the crusher. The plaintiff was standing on the step ■ -of the engine near the brake at the end of the loaded car. The crusher was over, and supported by uprights- on either side of, the tracks. " As the loaded car passed under the crusher the boxes projecting over its side came in contact with the uprights and were pushed back upon the plaintiff, causing the injuries complained of. The plaintiff knew that the' uprights were only from six to eight inches-from the tracks. He noticed, when the train was an eighth of a mile from the Crusher, that the boxes overhung so far as to render it likely-that they wo'u'ld hit the uprights if the train passed between them ; and although it is stated in the respondent’s brief that the plaintiff did not kncyv-that the train ivas to go between thfiuprights, he testified that-lie did know it. The court charged the:, jury, i/nter alia, as follows : “ The plaintiff says that when the train had gone a part of the distance between the starting point and the stopping point lie observed that the boxes had shifted, and he then ’ knew that there was danger of the overhanging part of the box, or boxes, coming into contact with the stanchions. In other .words, he says that when the car was half-way down to the stone crusher he realized the danger of just such an accident happening as did happen. Gentlemen, if that is correct, and if it is true that he could have avoided the accident, that he, realizing the danger, could have prevented the accident by getting out of .the place of danger, or by signaling to the engineer to stop, it was Ids duty so to . do, and if he failed in that duty, it was negligence on his part.” It is not pretended that the plaintiff did a thing to avert the accident which, according to his own testimony he knew was likely to happen. The evidence, is that the train was backing at the rate of five or six miles an hour. It must be assumed that the jury found that the plaintiff could not have prevented the accident after discovering the danger, either by getting out of the place of danger or by signaling to the conductor to stop. But there is not a particle of .evidence-to show that it was. impracticable for him to do either of -■ those things. The plaintiff had to prove his freedom from contributory negligence, and -we are unable to find in the evidence any basis for a finding that he could not have done what appears to have been entirely practicable. Accepting the charge of the court as the law of the case, the motion to dismiss should have be.en granted for failure on the plaintiff’s part .to prove his freedom from contributory negligence; hence it is unnecessary to consider the other questions urged by the appellants. Woodward, Jenks, Hooker and Gaynor, JJ., concurred. Judgment and. order reversed and new;,trial granted, costs to abidi . , the event. . t, . -