
    Mary McEvoy as Administratrix, etc., App’lt, v. The Manhattan R. R. Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed December 9, 1887.)
    
    Negligence—Railroad—Failure of proof.
    On the trial of an action for damages for the death of plaintiff’s intestate resulting from the alleged negligence of defendant company in selecting a certain engineer employed by it to run the locomotive which caused the injuries resulting tin said death, the circumstances of the accident were proved without any objection being interposed by defendant. Held, that the only case that the defendant was called upon to meet by the complaint was the allegation as to defendant’s negligent manner of selecting said engineer. That having failed to prove such negligence, the complaint was properly dismissed.
    This action was brought by Mary McEvoy as administratrix of Martin McEvoy, deceased, to recover $5,000 as damages from the defendant resulting from the death of said Martin McEvoy. The complaint, after alleging the incorporation, etc., of the defendant alleged, ‘ ‘ second, that on the 28th day of February, 1884, and between the hours of eight and nine o’clock p. m., one William N. Barrus was employed by said defendants to run one of their locomotive engines from One Hundred and Fifty-fifth street and Eighth avenue to Eector street in the city of New York. That said Barrus was not a licensed engineer, and was also incapacitated for the duties of a locomotive engineer bjr reason of defective vision, and was an incompetent, unskillful and unsuitable person to discharge the duties of such employment, of all which the defendants had full knowledge, and in so employing said Barrus to run said locomotive engine, the defendants were knowingly and wilfully guilty of gross negligence.”
    “ Third. That on said day and between the hours above mentioned, said Martin McEvoy was performing his regular duties as employee of said company in the capacity of ‘ trackman ’ upon the structure of the elevated railway at One Hundred and Twenty-fifth street and Eighth avenue, in the city of New York, and while so employed, and without warning, said locomotive engine run by said Barrus, and going at a high rate of speed, to wit, over fifteen miles an hour, was run upon and over said Martin McEvoy.”
    
      “Fourth. That by the negligent and careless conduct of the defendants in and about their said business, the said Martin McEvoy, without any negligence on his part, then and there sustained injuries which resulted in his death.”
    Then followed the necessary fact as to the issuance of letters testamentary, etc.
    The defendant, by its answer, denied that “ said Barrus was not fully authorized to run a locomotive engine, or that he was incapacitated in any manner for the •duties of a locomotive engineer, or that it was guilty of any negligence in employing said Barras to run the locomotive,” and also denied “that the said McEvoy was run over or upon without warning, or that the locomotive which run over or upon him was going at a high rate of speed, or at a • speed of fifteen miles an hour, or at any rate which was unusual or improper.”
    The plaintiff was allowed to prove at the trial, without objection:
    (1) That the night when this accident took place, it was dark, cold, snowy and blustering. (2) That McEvoy was .at the time engaged in shoveling snow from the tracks of the elevated structure at One Hundred and Twenty-fifth street and Eighth avenue, under the instructions of defendant. (3) That the locomotive engine which ran over Mc-.Evoy was a light or wild-cat engine, and started to go from One Hundred and Fifty-fifth street to Rector street without stopping. (4) That said engine was not running on schedule time, but was driven at an unusually high rate of ■speed. (5) That no whistle was blown or bell rung, or other signal given of its approach. (6) That no instructions were issued by the defendant company on this particular night to Barras, who had charge of the engine, to look out for the men on the track or give signal of his approach.
    At the close of plaintiff’s case, counsel for defendant moved to dismiss the complaint, which motion was granted by the court on the ground that “the only case that the defendant is called upon to meet by the complaint is the allegation that the defendant was negligent in the selection of the engineer,” and that there is an entire failure to prove that there was any negligence on the part of the defendant in selecting Barras,” etc., to which plaintiff duly ■excepted.
    From this judgment of dismissal, the plaintiff appealed • and asked that she be granted a new trial.
    
      Gilbert B. Hawes, for app’lt; Davis & Rapallo, for resp’t.
   Per Curiam.

At the trial, the plaintiff wholly failed to prove the cause of action set forth in the complaint, and consequently the complaint was properly dismissed.

The judgment must be affirmed, with costs.  