
    Christina Donnelly, as Administratrix, etc., of Edward Donnelly, Deceased, Appellant, v. The New York and Harlem Railroad Company, Respondent.
    
      Negligence — a driver thrown from a. horse car by an open sioitch—it is either a risk of the employment or caused by the act of a fellow-servant.
    
    In an action brought to recover damages resulting from the death of the plaintiff's intestate, caused by the alleged negligence of the defendant, it appeared that the intestate, Edward Donnelly, was employed by the defendant as driver of a horse car, and that on the day in question, when Donnelly reached a switch on the defendant’s road, it was open and the car struck it, jumped oil the track and Donnelly Was thrown off the car and was killed. The switch which caused the accident was used to turn cars into the stable of the defendant, was in. good condition, arid was of a kind in general use, and only a few minutes before the accident cars had passed over it in safety. There was nothing to show how the switch suddenly became open.
    
      Held, that the plaintiff could not recover as, there being no proof that the railroad or the car or the track was out of order, no negligence was shown on the part of the defendant;
    That if Donnelly was thrown from the car by the sudden turning of the car the risk was one connected with the employment;
    That if the switch was opened by a fellow-servant of the plaintiff the company incurred no liability for his act.
    Appeal by the plaintiff, Christina Donnelly, as administratrix, etc.,. of Edward Donnelly, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Rockland on the lYt-h day of June, 1895, upon the dismissal of the complaint directed by the court after a trial at the Rockland Circuit before the court and a jury.
    
      Irving Brown, for the appellant.
    
      Charles C. Paulding and Alonzo Wheeler, for the respondent.
   Pratt, J.:

This action was brought to recover damages for the death of Edward Donnelly, plaintiff’s intestate, upon Eighty-fifth street in the city of New York, June 11, 1894. The allegations of negligence set forth in the complaint are that the defendant permitted its switch in Eighty-fifth street to remain open without proper attention that defendant did not provide at said place a switchman to attend to such switch during the day, and was negligent in not providing a proper and safe switch- at said- place and in not kee]fing the-same in good condition, closed and fastened. Defendant denies that the ' accident occurred by reason of any negligence on the part of the defendant and alleges that the negligence of Edward Donnelly or that of a competent fellow-servant caused the accident.

At the time of the happening of this accident Edward Donnelly was a horse-car driver employed by the New York and Harlem Railroad Company. On June 11, 1894, he was the driver of a car which ran from Madison avenue and Eighty-sixth street to Eighth avenue and Eighty-fifth street, going west. On Eighty-fifth street there were switches leading from the main track of defendant into its stable ; and while the-car driven by Donnelly was passing over these switches it jumped the track and Donnelly fell over the car and-was killed. The switch at the time was turned so as tó turn the - car into the stable, although five minutes before the accident, a Second avenue car, going west through Eighty-fifth street, had" passed over the same switches in safety, and cars had been going west and passing over the switch every three minutes since eight o’clock in the morning. The switch was a “standard switch”. which swung from right to left, and when set was secured by an iron plug and a rubber. It was closed that morning and cars were going over it all the morning. During the day the switch was not open at all. It was in use only .in the morning to take out cars and; in the evening to put in cars, and during the day was closed and secured by‘the iron plug. The saíne pattern of switch is used by ; other street railroad companies.

How this switch happened to be connected at this time with "the railroad, so as to turn the car to the right towards the stable., does -not appear. Undoubtedly the switch was either turned so as to connect and turn the car off by some fellow-servant of the plaintiff, or by accident the plug got. out so as to allow the switch to move. The device for switching off the cars' towards the stable was in perfect order, had been'in use that morning and was in use afterwards.. The car-turning suddenly to the right threw the plaintiff off of the", platform and over the dashboard Or to one side and he was killed. There is no theory upon which this action can. be maintained, If' he was thrown off from the car by the. sudden turning of the car the risk of his being thrown from the cat was whát he assumed by accepting the employment. - If the switch was turned by. a fellow-, servant, that no- liability was incurred by the company is too well-settled to require citation of authority.

No proof whatever was. offered tó show that the railroad or fhe car or the track Was out of order, which caused the accident. The defendant was- under no obligation to keep a .man at- this point to watch all the time, but only while the switches were in Use, to take "the cars out and into the stable.. It does not appear in what manner Donnelly was driving, whether slow or -fast, whether he observed the track to see if the switch was open or closed, whether he saw the open, switch and regulated his conduct accordingly, or whether, seeing it, he attempted to drive past it. There was a failure to prove any negligence upon the part of the defendant,.

Judgment affirmed, with costs.

All concurred, except Bartlett, J., who concurred in the result.

Judgment affirmed, with costs.  