
    Eliza Dering, Adm'rx, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 23, 1893.)
    
    ¡Negligence—Contributory.
    Plaintiff’s intestate, who was employed by defendant in its freight yard as a switchman, after operating his switch to allow four cars to pass, with the engine that had pushed them in full view on the adjoining track, attempted to pass from his switch on to the track on which the engine was slowly following the cars he had switched, apparently attempted to cross in front, was heard to helloa, and was found under the wheels of the truck of the engine, dying shortly from the injuries received. Deceased was a careful, temperate man, sixty-two years old. Held, that a non-suit was properly granted.
    
      Appeal from a judgment entered in Oneida county upon a non-suit granted at the circuit in that county. Plaintiff’s intestate was in the employ of the defendant for a period of about thirty years, and was about sixty-two years of age when, on the 3d of March, 1890, he was injured in the freight yard at Bast Utica by being run over by an engine and tender belonging to the defendant, then in use in its business in said freight yard. The deceased was a switchman. About four o’clock in the afternoon of the 3d of March, the deceased, after operating his switch to allow four cars to pass, with the engine that had pushed the cars in full view on the adjoining track, for some reason not disclosed by the evidence, attempted to pass from his switch north on to the track on which the engine which produced the injury was slowly following the cars he had switched. ISTo witness described his movements just before the injuries were received.
    Apparently he attempted to cross in front of the moving engine, and he was heard to helloa and was found under the wheels of the truck of the engine. As soon as his voice was heard by the engineer in charge of the engine the engine was stopped, and it was found that one wheel" of the truck had passed over his right arm and leg, and the other wheel stood on the left foot so that the engine had to be started to extricate him. He was picked up by the servants of the defendant and shortly thereafter died from the injuries which he received. Apparently the deceased was a careful, temperate, prudent man. He was seen, just before he was injured, sitting on the branch near the round house on the second or third branch. The second switch from the round house is on track number one. There was an engine east of the deceased and the engine blew for the deceased to come and shift a branch on track number four, and he thereupon started to go across, looking toward the east, toward the engine that was blowing; the engine that injured him stood west of him on track number two. It is claimed, in behalf of the plaintiff, that at the time the accident occurred the fireman was not on the engine, but had temporarily gone therefrom to secure oil. The engine was moving, apparently, at the rate of three or four miles an hour. At the close of the evidence the defendant moved for a non-suit on several grounds, among others, that: “ The evidence fails to show affirmatively that there was no negligence on the part of the deceased producing or tending to produce the injury; ” also, “ The evidence shows that ordinary and usual care and prudence on the part of the deceased would have avoided the injury which produced his death.” Also, that “The evidence fails to show that the defendant was guilty of negligence that alone produced the injury claimed uponalso, “ The deceased, in accepting and continuing in the employment of the defendant, assumed all the hazard and risk of the situation from which it is claimed that he was injured.” When the motion for a nonsuit was granted the plaintiff took an exception.
    
      M. V. B. McGrawn for app’lt;
    
      OyrusD. Prescott, for resp’t.
   Hardin, P. J.

Plaintiff’s evidence failed to show any specific act or definite omission on the part of the defendant which warranted a finding that the injury was occasioned solely by the negligence of the defendant towards its employees. Morrison v. The N. Y. C. & H. R. R. R. Co., 63 N. Y., 643.

In Dobbins v. Brown, 119 N. Y., 193; 28 St. Rep., 957, in speaking of actionable negligence, it was said that it “ must be proved, either by direct evidence or the proof of facts from which the inference of negligence can be legitimately drawn by the jury. It cannot be supported by mere conjecture or surmise, but must be made referable by the proof to some specific cause or defect. It has been held that the mere fact that an accident occurred which caused an injury is not generally, of itself, sufficient to authorize an inference of negligence against a defendant. Curtis v. R. & S. R. R. Co., 18 N. Y., 534.”

In Powers v. The N. Y. C. & H. R. R. R. Co., 38 St. Rep., 561; S. C. affirmed, 128 N. Y., 659; 40 St. Rep., 979, it was said by Martin, J., speaking for this court, viz.: “ While it must be admitted that negligence is generally a question for the jury, still it is only when the facts would authorize a jury to find it that it should be submitted to them. Sutton v. The N. Y. C. & H. R. R. R. Co., 66 N. Y., 243,” and that learned judge in his opinion used language and stated numerous authorities that are pertinent to the question now under consideration.

(2) Plaintiff was called upon to prove by affirmative evidence, or to produce facts and circumstances, coupled with the occurrence of the accident, which would indicate or tend to establish a freedom of the deceased from contributory negligence, and that the deceased used care and prudence preceding and at the time the injuries occurred. Tolman v. S., B. & N. Y. R. R. Co., 98 N. Y., 198. It is true, as claimed by the appellant, that in considering this motion we must give the most favorable construction of and inference that can be reasonably drawn from, the evidence to the plaintiff. Galvin v. Mayor, etc., of New York, 112 N. Y., 230; 20 St. Rep., 569. With that rule in mind we are unable to say that the facts proved fairly tended to support an affirmation that the plaintiff’s intestate was free from negligence. Cahill v. Hilton, 106 N. Y., 512; 11 St. Rep., 26.

The deceased had been in the employ of the defendant, engaged in the business which occupied his attention on the day he received his injuries, for many years, and was conversant with all the incidents and dangers surrounding the occupation. And in Gibson v. Erie Railway Co., 63 N. Y., 449, it was said of an employe, viz.: “ If he accepts service with knowledge of the character and position of structures from which employes might be liable to receive injury, he cannot, * * * in case of injury, hold him liable.” The same doctrine has been repeated in numerous cases. See Cahill v. Hilton, 106 N. Y., 518; 11 St. Rep., 26; Shaw v. Sheldon, 103 N. Y., 667; 3 St. Rep., 679. And in Powers v. The Central Road, supra, Martin J., said: “ Where a servant enters upon an employment from its nature necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him or which are apparent to ordinary observation.”

In Williams v. D., L. & W. R. R. Co., 116 N. Y., 629; 27 St. Rep., 760, the rule was adverted to and stated in the following language : “ The rule is, that a servant who enters upon employment from its nature hazardous, assumes the usual risks and perils of the service, and of the open, visible structures known to him, or of which he must have known had he exercised ordinary care and observation.”

(3) When Walyers, a witness who was near the scene of the accident,- was being examined, he testified as follows: “ I found him with his right arm cut off, and his right leg and his left foot was right under the tank of the engine when I found him; the engine had to slack ahead a little to let him out; his left foot was smashed through his boot when I found him; he asked me then how he got there, and I couldn’t tell him.” This last expression was objected to, and the court remarked, “Leave that out.” An exception was taken. We think the exception presents no error. First, it was a declaration of the deceased sought to be given in favor of the plaintiff; second, if it had been allowed to remain in the case, it is not apparent that it would have produced a different ruling upon the motion for a nonsuit than the one that was made at the circuit. We. think the trial judge committed no error in his rulings at the circuit, and that the nonsuit there granted must be allowed to remain.

Judgment affirmed, with costs.

Martin, J., concurs; Merwin, J., not sitting.  