Opinion
March 3, 1909.
Ceylon H. Lewis and Will B. Crowley, for the appellant.
Frank C. Sargent, for the respondent.
The judgment and order should be affirmed, with costs.
The action was brought to recover damages for personal injuries alleged to have resulted from defendant's negligence. The action was tried as one at common law, but the plaintiff claimed the benefit of the Barnes Act, so called, section 42a of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1906, chap. 657).
The negligence claimed was that of the engineer of the train in starting his engine too quickly, when the signal to him was to start slowly. The plaintiff was a brakeman, was standing on the top of a freight car, and was thrown to the ground by an extraordinary jerk given to the car, and a car wheel passed over his arm, and so crushed it as to require amputation. The plaintiff was standing at the rear end of the fourth car, looking down at another brakeman who was standing on the bumper of the fifth car, releasing the coupling between the two cars. When the couplers parted the plaintiff stepped back six feet away from the rear of the car, and gave the engineer a signal to draw ahead slowly. The engineer disregarded this signal, and started so suddenly as to throw plaintiff off the end of the car.
First. The sole negligence alleged against the defendant was that of the engineer. At common law he would be a fellow-servant of plaintiff, and no recovery could be had for such negligence. The Barnes Act, however, provides that in actions against railroad companies by their employees for injuries received in their service, persons who have as a part of their duty, for the time being, physical control or direction of the movement of a locomotive engine, car or train, are vice-principals of the railroad companies, and not fellow-servants of such employees.
We are unable to see why this act is not applicable to the present case, and why it does not permit a recovery for plaintiff's injuries, so far as the element of defendant's negligence is concerned. The trial court took this view of the case, and submitted fairly to the jury the questions whether the engineer was guilty of negligence in the manner of starting the engine and train. We do not take the view entertained by defendant's counsel, that it was the plaintiff, the brakeman, rather than the engineer who was in control of the movements of the engine and train. He gave signals to the engineer, it is true, but the engineer was not under his control, was not bound to obey his directions. We think the trial court committed no error in the submission of this branch of the case to the jury.
Second. The question of contributory negligence was carefully and correctly submitted to the jury by the trial court. Among other things they were told that they must find, in order to render a verdict for the plaintiff, that the injury which he received was caused by something outside of the ordinary risks and dangers attendant upon the operation of a freight train; that whatever jerking or rapidity of motion was proper or necessary to accomplish the object they had in view, therefore, the plaintiff had no right to complain of; that it must be something more than the ordinary operation of a locomotive and cars which afforded him any basis for a recovery. There was considerable disagreement as to how the train was started, and how much jerking there was, the plaintiff testifying that the jerking was so extraordinary as to throw him six feet over the end of the car without striking it. Upon the facts as claimed by the plaintiff he was using all the care which any prudent man would use who understood about the usual and ordinary jerking of cars in the operation of a freight train, and nevertheless the accident occurred as he detailed it.
We think the verdict under evidence and the charge was one that the jury was authorized to render, and that it should not be set aside as contrary to the evidence, under the well-established rules applicable to such cases.
The judgment and order should, therefore, be affirmed.
All concurred.
Judgment and order affirmed, with costs.