
    Catharine Areson, as Administratrix, etc., App'lt, v. The Long Island R. R. Co., Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    IStgligence—Railroad—Question of fact.
    
      A locomotive of defendant company, while hauling a train, kept on the main track, at a certain station, but the train itself went off on a switch and pulled the locomotive so that it was overthrown; the deceased, who was the engineer, was killed. Held, that the happening of the accident, being one which does not occur in the ordinary course of things, cast upon the defendant the burden of explaining the accident, and that the case should have gone to the jury. Following Durkin v. Sharp, 88 If. Y., 325. Dvkman, J., dissenting.
    Appeal from a judgment in favor of defendant entered upon an order of the Queens county circuit court dismissing the complaint upon the merits.
    
      Thomas F. Donnelly, for app’lt; Hinsdale & Sprague, for resp’t.
   Barnard, P. J.

The circumstances surrounding this accident are very peculiar. The locomotive, while hauling the train, kept on the main track at Bethpage station, but the train itself went off on a switch and pulled with it the locomotive so that it was overthrown. The deceased was the engineer and was killed. The accident was one which did not happen in the ordinary course of things, and under the duty which is put upon the defendant it was to furnish safe appliances and to keep the same in order, to avoid liability for damages to an employee in consequence of the neglect so todo Under the case of Durkin v. Sharp, (88 N. Y., 225), the case should have gone to the jury. The happening of the accident cast upon the defendant the burden of explaining the accident according to that case. It is the theqry of the defendant that some one had tampered with the switch. The plaintiff claimed that the switch was improperly made or was out of order. Seybolt v. N. Y. and Erie R. R., 95 N Y., 565.

Evidence offered by plaintiff tending to show that the switch as put in was bad in principle, was improperly rejected. Upon cross-examination the defendant was permitted to show that the same switch continued in use, and proof offered by plaintiff tending to show that the switch was not the same but had a new principle of blocking it, was improperly rejected. The judgment should be reversed and a new trial granted costs to abide event.

Pratt, J., concurs.

Dykman, J.

(dissenting). This is an action under the statute for the recovery of damages for the death of the plaintiff’s intestate, who was an engineer in the employment of the defendant at the time of his death.

The deceased was driving a locomotive engine drawing a train of two cars upon the main line of the defendant’s railroad. At the place of the accident that main line connects with another line of railroad of the defendant, and a switch was maintained at the cross-over near the junction.

Upon reaching the switch the engine continued upon the main track, but the cars failed to follow and started upon the cross-over line, and as the engine and cars were thus pursuing divergent lines the engine was drawn over on its side and the engineer was killed.

The charge against the defendant is the inadequacy of the engine for the service in which it was engaged, and the faulty construction, want of repair and defective condition of the switch.

Neither of these charges was sustained by proof. There was no defect or fault in the construction of the switch. It was found partially opened and disordered after the accident, but that condition is not chargeable to tho defendant. The switch itself was of approved pattern and construction, and had borne the test of time and use, and appears to have been in order about an hour before the accident.

The engine had" been employed in the same service with the same engineer for several days, and was found adequate and sufficient for the same.

The testimony indicates malicious tampering with tho switch as the cause of the accident, but is entirely insufficient to charge the defendant with negligence in any respect.

The rulings at the circuit present no errors, and the complaint of the plaintiff was properly dismissed.

The judgment should be affirmed with costs.  