Carrie Loushay, as Administratrix, etc., of Adelbert E. Loushay, Deceased, Appellant, v. Erie Railroad Company, Respondent

Carrie Loushay, as Administratrix, etc., of Adelbert E. Loushay, Deceased, Appellant, v. Erie Railroad Company, Respondent. Negligence—injury to a switchman operating a jack-knife switch—when he assumes the risk of its faulty design and its Toeing out of order. A railroad company is not liable in damages for the death of a switchman, who, while operating a jack-knife switch, was killed, either because the design of the switch was faulty, or because it was out of order, where it appears that the deceased was an experienced brakeman, who had been employed in the yard in which the switch was located for several months, and that there was nothing in the mode of the construction of the switch or in its condition at the time of the accident which had not existed for a considerable period of time, or which was not discoverable by ordinary observation. In such a case the accident must be deemed to have been one of the risks of the employment which was assumed by tbe deceased. Appeal by the plaintiff, Carrie Loushay, as administratrix, etc., of Adelbert E. Loushay, deceased, 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 10th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term. Thomas Watts, for the appellant. Henry Baoon [Joseph Merritt with him on the brief], for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: This case was considered by us on appeal from a judgment recovered by the plaintiff, and we held that on the facts as then disclosed there should have been a nonsuit. (See Loushay v. Erie Railroad Co., 75 App. Div. 619.) The plaintiff’s intestate was killed while attempting to throw the handle of a jack-knife switch, the wheels of an engine or car upon the track striking the switch point or movable rail at the time in such a manner as to cause the handle to fly up and strike him with great force and violence. The negligence assigned was that the handle bar was bent and, therefore, out of brder, but we could find no proof in the case that the bent bar was in any respect the cause of the accident. In other words, there was nothing to indicate that the engine would not have opened the switch and thrown the handle quite as effectually had the handle bar been straight as it did with that bar bent. The proof in this respect does not differ materially as presented by the record now before us. The plaintiff, however, sought to prove not only that the switch was out of order, but that as originally constructed the design was faulty, and that the accident was due in some degree to such improper mode of construction. The plaintiff’s intestate was a switchman of experience, had been employed by the defendant a number of years, and had worked for- some months in the yard where the accident occurred.' The mode of con'-struetion of the switch was perfectly obvious and must be deemed within the principle of a long line of cases to involve a risk of the employment. There was nothing either in the.mode of construction or in the actual condition of the,switch at the time of the occurrence which had not existed for a considerable period or which was not discoverable by ordinary observation. The judgment should be affirmed. Judgment unanimously affirmed, with costs.