
    Ellen C. Millette, as Administratrix, etc., of William L. Millette, Deceased, Respondent, Appellant, v. New York, Westchester and Boston Railway Company, Appellant, Respondent.
    Second Department,
    July 30, 1915.
    Railroads—master and servant — Federal Employers’ Liability Act — negligence — death of employee from electric shock — contributory negligence — assumption of risk.
    In an action under the Federal Employers’ Liability Act to recover for the death of plaintiff’s husband, sustained while he was repairing the electrical apparatus on a bridge over the defendant’s railroad, it appeared that the plaintiff on the day of the accident, after working on apparatus which was not charged, was called to work on the knife switches where he had to stand on a raised plank slightly inclined and slippery; that these parts could be made safe by shutting off the current, which had been the ordinary practice when making repairs, and which would not interfere with the operation of trains, and that after reaching this place a knife switch held by the decedent touched a live receiving jaw, resulting in his instant death. There was also evidence of a rule of defendant’s railroad and of other railroads not to allow work to be done on any 11,000 volt apparatus while it was “alive.”
    
      Held, that on these facts it was properly found that the defendant was negligent in not shutting off the current, and that the deceased was not guilty of contributory negligence and did not assume the risk.
    A verdict of $23,750 for the death of a foreman earning $105 a month and paying to his wife $90 to $95 monthly is excessive, and properly reduced to $15,000.
    Appeal by the defendant, New York, Westchester and Boston Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 14th day of October, 1914, upon the,verdict of a jury for $23,827.95, and also from an order entered in said clerk’s office on the 3d day of March, 1915, in so far as it denies defendant’s motion for a new trial made upon the minutes.
    Appeal by the plaintiff, Ellen C. Millette, as administratrix, etc., from so much of said order as directs that the verdict herein be set aside and a new trial granted, unless the plaintiff stipulates to reduce the verdict to $15,000.
    
      
      Thomas J. O’Neill [L. F. Fish with him on the brief], for the plaintiff.
    
      Ralph Polk Buell [George S. Graham with him on the brief], for the defendant.
   Per Curiam:

Under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143), plaintiff recovered, as damages for her husband’s death, a verdict of §22,750, which the trial court reduced to §15,000. Defendant appeals from the judgment and from the refusal to set aside the verdict wholly, and plaintiff appeals from the reduction of the jury’s verdict.

Deceased met his death while he was repairing a part of the electrical apparatus on the West Farms anchor bridge over the defendant’s railroad. These bridges are points where the electrical transmission may be broken or interrupted by certain circuit breakers which apply to the lighting systems and to the track systems. Although these repairs had been going on during two or three days, only a part of the appliances on this bridge were dead, as others were charged with a current of high tension. On the day of the accident, deceased had first worked on a bus breaker, which was not charged. After finishing this relatively safe work, the deceased was called to the work on the knife switches, where he had to stand on a raised plank, slightly inclined, to reach the part where he was to help. It was claimed that this plank was slippery from grease. These parts also could be isolated by shutting off the current, which precaution would not interfere with the train operation. Such had been the practice when these switches on this same anchor bridge had been previously repaired. There was also evidence of a rule of defendant’s railroad, and of other railroads electrically operated, not to allow work to be done on any 11,000 volt apparatus while it was alive, but instead to free it by shutting off the electrical current.

After reaching this place deceased had a knife switch which another workman looked at. Just then the roar of a shock was heard, resulting from the knife switch touching, and so making a connection with, the live receiving jaw — with effects so severe as to cause instant death.

On this testimony the jury could find that it was negligence not to kill these breakers and other parts, and that deceased had not been told, and had no reason to suppose, that the receiving jaws were charged. On this ground, by their verdict, the jury could and did negative contributory negligence, also could properly find against the defense of assumption of risk, since it does not appear that deceased was aware that these jaws had not been killed as prudence required.

But for the death of a foreman earning $105 a month, and paying to his wife $90 to $95 monthly, a verdict of $22,750 was excessive. The annual interest thereon would make an income beyond what the plaintiff had been receiving from the deceased’s earnings. Hence the trial justice acted within his discretion in cutting down the verdict to $15,000.

The judgment and order are, therefore, affirmed. As these are cross-appeals, the affirmance is without costs.

Present — Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ.

Judgment and order unanimously affirmed, without costs.  