
    Mary Good, Administratrix, etc., Resp’t, v. The New York, Lake Erie and Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Negligence—Weight oe evidence.
    Where the verdict is against the weight of the evidence on one of the essential questions of fact submitted to the jury, a new trial will be granted.
    2. Same—Contributory negligence—" Flying Switch.”
    Four horses belonging to plaintiffs intestate were killed on a siding of defendant’s road, under the following circumstances: Plaintiffs intestate was in the habit of hauling cars on that siding for the Blaisdell mill. The defendant daily used the siding on the arrival of a certain train, for sending-cars loaded with logs to the Bullís mills, situated on the same siding beyond the Blaisdell mill. This was done by means of a “flying switch,” the loaded cars being cut out of the train while in motion, and propelled by their own momentum down the siding. The plaintiff's intestate was familiar with this use of the siding, and knew the time at which the log-train was accustomed to arrive, ana it, was his duty to keep the siding clear at such time. At the time of the accident, his teams were employed in moving a string of empty cars on the siding. When the log-train arrived and the flying switch was made, the empty cars had been drawn on to a branch siding near the Blaisdell mill, but the loaded cars came down the main siding and followed the empty cars, by means of the open switch, on to the branch and the collision occurred which resulted in the loss of the horses. It was the duty of the plaintiff’s intestate and his men to close the switch behind them, but the loaded cars followed so closely as not to give time to do so. There was some evidence that the men in charge of the train were warned by Dunn of the presence of the empty cars on the siding before the flying switch was made. The weight of the evidence showed that the train did not arrive ahead of the schedule time, but a little after. Held, that it was not error in the trial court to refuse to instruct the jury that the omission of the engineer to observe the warning given by Dunn, did not constitute negligence on the part of the defendant. Held, also that if the train was in advance of its schedule time, when the flying switch was made, that was a fact the jury might consider. They might well have found it negligence on the part of the defendant’s servants to throw the loaded cars on the siding before the usual time for so using it, when men and teams might be there engaged in moving empty cars.
    5. Same—Contbibijtory negligence.
    The fact' of the time of the accident was important and, perhaps, conclusive on the question of contributory negligence on the part of the plaintiff’s intestate. It was negligence on his part to have his teams on the track at a time when the loaded cars were likely to be sent over it.
    
      4. Same—Weight of the-evidence—Hew trial.
    Where the weight of the evidence clearly establishes the fact that the train was on schedule time, or a little later, it is very material on the question of contributory negligence on the part of the plaintiff, and a motion for a new trial will be granted.
    6. Same—Credibility of witnesses.
    The fact that all the witnesses for the defendant’s contention, as to the time of the arrival of the train, were in the employ of the defendant, and some of them engaged in running the train in question, should not discredit their testimony unless it was substantially contradicted.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial on the minutes.
    
      J. H. Stevens, for app’lt; J. R. Jewell, for resp’t.
   Dwight, J.

The action was for the alleged negligent killing of four horses, belonging to the plaintiff’s intestate, on a siding which branched from the defendant’s road, at what is known as the Bullís switch, in the town of Carrolton, in Cattaraugus county. The plaintiff’s intestate was employed by the Blaisdell Bros., owners of_ a mill situated on the siding, to draw cars to and from their mill. It was his duty to keep the siding clear from cars at such times as the defendant had occasion to use it—as they did nearly every day on the arrival of a certain train—to send cars loaded with logs from the main track to the Bullís mills, situated beyond the Blaisdell mill on the same siding. This was done by means of what is called a “flying switch,” the loaded cars being cut out of the train while in motion, and propelled by their own momentum down the siding on to which they are thrown.

The plaintiff’s intestate was familiar with this use of the siding, and knew the time at which the log train was ■ accustomed to arrive.

On the day of the accident his teams were engaged in moving a string of empty cars when the log train arrived and the- flying 'switch was made ; the empty cars had been drawn on to a branch siding near the Blaisdefl mill; the loaded cars came down the main siding and followed the empty cars, by means of the open switch, on to the branch, and the collision occurred which resulted in the loss of the horses.

, It was the duty of the plaintiff’s intestate and his men ,to close the switch behind them; but, as the evidence tended to show, the loaded cars followed the empty cars so closely as not to give time to close the switch after the passage of the latter.

There was evidence which warranted the submission to the jury of the question of negligence on the part of the defendant’s servants. The testimony of Dunn and Evans, called by the plaintiff, and of Eigdon, the station agent, and Eogers, the engineer, on the part of the defendant, in respect to the attempt to warn the men in charge of the train, and thus avert the accident, clearly presented a question of fact on that branch of the case. The request of the defendant’s counsel for an instruction that the omission of the engineer to observe the warning given by Dunn did not constitute negligence on the part of the defendant was properly denied, and the question seems to have been fairly submitted to the jury.

So, also, if the train was in advance of its schedule or usual time when the flying switch was made, that was a fact which the jury might consider as bearing upon the same question. They might well have found it negligence on the part of the defendant’s servants to throw the loaded cars on to the siding at a time when men and teams might be there engaged in moving empty cars.

But upon the other branch of the case the question whether the train was or was not in advance of its usual time became the principal question for the jury, and was so treated by the court. The fact of the time of the accident was important and perhaps conclusive on the question of contributory negligence on the part of the plaintiff’s intestate. It was manifestly negligence on his part to have his teams on the track at a time when the loaded cars were likely to be sent over it. And so the court, in substance, charged the jury.

It is chiefly on the ground that the verdict was against the weight of evidence on this question, that the appeal from the order denying the motion for a new trial is urged, on the argument here; and we think the objection to the verdict on that ground should have been sustained.

The evidence on the question of time can scarcely be said to be conflicting. The schedule time for the arrival of the train at Carrolton station was 1:30 p. m. The Bullís switch was between one-half and three-quarters of a mile south" from the station, and the train was coming from the south. There was no schedule time for its arrival at the switch, but the conductor testified that it took about fifteen minutes to cut out the cars and do the switching, and that when the train arrived at Carrolton on time it must arrive at the switch at from five to ten minutes after one. Rigdon, the station agent at Carrolton, and Murray, the. track master, testify that at ten minutes past one, by the latter’s watch, Rigdon left the station to go up to the switch. He took pains to ascertain the time in order that he might have a clear track for his hand-car. He testifies that he had shortly before ascertained, on inquiry by the telegraph, that the train was then at Livingston station, six miles south. He says he arrived at the switch about five minutes after leaving Carrolton, and was there at least twenty minutes before the collision occurred.

The conductor of the train, the engineer, the head brakeman, and two other brakemen, testify that the train left Livingston at one o’clock, fifteen minutes late, and the engineer says he made up five minutes of the time before reaching the switch, so that they were there ten minutes behind time. The engineer and the head brakeman both kept records of the time, and both entered the time of departure from Livingston as one o’clock. Some question was made about an alteration of the entry made, by the head brakeman, of the time of arrival at Carrolton, This he explains by testifying that when he entered the time of leaving Livingston, he anticipated the time of arrival at Carrolton, and entered it as 1:35, thinking they would be ten minutes late; but that having been delayed by the accident, and not arriving at Carrolton until 1:45, he then corrected the entry.

We see nothing in the case to cast serious suspicion on the testimony of either of these six or seven witnesses; and the fact that they were, all of them, in the employ of the defendant, and some of them engaged in running the train in question, should not discredit their testimony, unless it was substantially contradicted. This, as already intimated, we do not find to be the case. The only'appearance of contradiction is found in the testimony of Dunn and Evens. Dunn testifies: “The train was ahead of time that day; couldn’t tell how much; about ten or fifteen minutes any way; ” but testifies, at the same time, that he does not_ know at what time it was due at the station; he says: “it was one something, or one thirty something.” He does not say that he had a watch or consulted any time piece; but he testifies that as the train passed the switch, “ the saw mill whistle blew one o’clock. * * * I could not tell whether they had railroad time or not.” The testimony of Evens was even less contradictory. In answer to the question “Do you know what time it was when the train was in there?” He testified “no; I did not look at the time; I did not have any time, and did not look; I should judge it was about one o’clock.” This is all the evidence given on the part of the plaintiff in respect to the time at which the accident occurred. It seems to furnish no substantial contradiction to the evidence on that subject given on the part of the defendant.

Such being the case, it must be held that the verdict was against the weight of evidence on one of the essential questions of fact submitted to the jury; and for that reason the judgment must be reversed, and a new trial granted.

Judgment and order reversed; new trial granted; costs to abide event.

All concur.  