
    Mary White, as Administratrix, etc., of William White, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence — a verdict resting merely upon speculation, not sustained.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the intestate was employed on the defendant’s railroad as a flagman, and that it was also his duty to patrol the track; that the defendant had provided a shanty for the use of the intestate, in which he was accustomed to stay when his patrol work was done.
    The intestate left his home on the afternoon of December 4, 1898,"to go to his work and was never thereafter seen alive by anybody. The night was very stormy, and on the following day his shanty was found in the Hudson river. July 25, 1899, his body was found in the Hudson river two or three miles distant from the shanty.
    There was evidence tending to show that the shanty was not adequately secured to the ground, and that the defendant was chargeable with knowledge of this fact.
    There was no evidence that the plaintiff's intestate was in the shanty when the structure was blown into the river. On the other hand, it appeared that on the night of the storm the wind was strong enough to have blown a man into the river while he was engaged in patroling the track.
    
      Held, that the complaint was properly dismissed, as a finding that the intestate was in the shanty when it was blown into the river would he based upon mere speculation.
    Appeal by the plaintiff, Mary White, as administratrix, etc., of William White, 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 8th day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the - Orange Trial Term.
    
      The action was brought to recover damages occasioned by the death of the plaintiff’s- intestate while an employee of the defendant.
    
      Thomas Watts and Frank R. Gxmip, far the appellant.
    
      Charles F. Brown, for the.respondent-.
   Willard Bartlett, J.:

The plaintiff’s husband, William White, was employed by the , defendant as a flagman upon the West Shore railroad imthe vicinity of Storm King. In addition to his functions as a flagman, it was his duty to patrol the track and see that it was kept clear- from all obstructions to the trains. The defendant provided a- shanty for the use of the flagmen at this point, in whicli they were accustotned to stay when their patrol work was done and await the coming of the next train to be signaled. White left his home at Cornwall on the afternoon of December 4, 1898, to go to work as the night flagman at the Storm King flag station. There is no evidence that he was ever seen alive by anybody after his departure from- Cornwall on that day. The night was a very stormy one, with heavy rain and a strong wind from the south. On the following day the flagman’s shanty at Storm King was found in the Hudson river. Nothing appears to have been seen or heard of White until July 25, 1899, when the corpse of a mail was found in the Hudson river at West Point, at a point between two and three ..miles-distant from the shanty. The flesh was so far removed from the face as to render it impossible to identify the person by means of his physical appearance; but the clothes on the body, and particularly the shoes, were sufficiently identified to warrant the inference that the corpse was that of the plaintiff’s husband.

The theory of the plaintiff’s case «.was that the shanty, at Storm King, which was provided for her husband’s rise as flagman, at all events at-such times as lie was not directly employed-in the discharge of' his duties, was insecurely fastened to the ground; and that, in consequence of the defendant’s lack of care to affix it properly to the earth, it was blown into the river by the violence of the storm, carrying the flagman with it. I think there was enough proof to sustain a finding that the shanty was not adequately secured to the ground, and that the defendant was chargeable with knowledge of this fact; but the fatal defect in the case for the plaintiff was the failure to show that this negligence, assuming it to have existed, was the cause of the flagman’s death. There is no evidence whatever that he was in the shanty when the structure was blown into the river. Indeed, the fact that his body was not discovered in it or near it on the day after the storm, rather tends to show that he was not carried with it into the river. On*the other hand, there is proof which indicates that the violence of the wind on the night of the storm was such that it might well have sufficed to blow a man into the river while he was engaged in patroliug the track. One witness who was in the employ of the defendant as a flagman at a point on the West Shore railroad, not far distant from Storm King, described the wind on the night of the storm when White disappeared as being so violent that he had to lean down against the track to keep himself from blowing over. The same witness testified that just before the wind was heaviest he saw a light from a lantern up on White’s part of the track, which would indicate that White ivas outside the shanty rather than in it during the height of the gale. The rule invoked by the appellant, that in a case where the complaint is dismissed the plaintiff is entitled to the most favorable inferences that can be drawn from the proof (Rehberg v. Mayor, 91 N. Y. 141), cannot be carried so far as to supply a lacking link in the chain of causation necessary to make out the defendant’s liability. To allow the jury, upon the facts in this case, to find that the death of the plaintiff’s intestate was due to the insecurity of the flagman’s shanty at Storm King would be to sanction a judgment founded not on legal evidence, but mere surmise, speculation and guesswork.

I think the learned trial judge was right in dismissing the complaint and that the judgment should be affirmed.

All concurred.

Judgment unanimously affirmed, with costs.  