
    Theresa Irwin, as Administratrix of Alfred J. Irwin, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence — injury occasioned by a motorman with defective sight running his cat-against the conductor of another car.
    
    In an action brought to recover damages resulting from the death of a conductor on the defendant’s railroad, who, while adjusting the fender at the rear of his car, was killed by a car running into him, the motorman of the colliding car, who had been in the defendant’s employ about a year, testified that the accident was due to his defective eyesight, although it appeared that he could see the decedent’s car, which was illuminated. He further testified that he had had two previous collisions, which were also due to the same cause, and that he had explained this fact to the inspectors or officers of the defendant.
    
      Held, that the evidence was sufficient to support a conclusion that the motorman was not physically competent, and that the accident was caused thereby, and that the defendant could and would have discovered his condition in the exercise of reasonable diligence.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of July, 1900, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 11th day of July, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      P. S. Dudley, for the appellant.
    
      Thomas F. Magner, for the respondent.
   Hirschberg, J.:

This case is essentially different from Engelhardt v. Delaware, L. & W. R. R. Co. (78 Hun, 588). In that case it was determined that the engineer’s nearsightedness in no way contributed to the accident. The accident occurred because he ran his engine too near to the main track. The evidence was to the effect that his vision was perfectly good for a distance of 350 feet, but as a matter of fact he ran his engine to within a very few feet of the main track, and remained there until the collision occurred. The court said (p. 590): ■“ It was necessary for him to see but a very few feet to determine liow near he was to the main track at the time of the collision. He was, undoubtedly, guilty of negligence in running his engine ¡so near the main track. The deceased and one of the brakemen were on the engine when it was run down to the place of the ■collision, and they do not seem to have discovered the proximity ■of the engine to the main track. It cannot, with any propriety, be •claimed that the accident resulted from any defect in the engineer’s ■ eyesight.”

In this case the defendant’s motorman, Holmes, ran into a car which was standing at the time on the track in front of the car which he was operating. The plaintiff’s decedent was the conductor ■of that car, and liis car should have reached Greenpoint ferry' first. Holmes’ car, however, got there first, but he let' the car in charge of ihe plaintiff’s decedent start first on the return trip, he immediately •following. After crossing Franklin street, beyond the circuit "breaker, the plaintiff’s decedent stopped his car and went to the rear •of it to adjust the fender properly for the return trip, and while he was so doing Holmes ran his car against him and killed him. Holmes testified on the trial that the accident was due to his defective eyesight. It occurred at night, when it is true he could see the car .ahead of him, which was illuminated, but it was a fair question for the jury whether he could see a. man standing by the fender and -to some extent obscured by reason of his position, and whether such ¡an accident would have been likely to occur had Holmes possessed -.normal vision.

Holmes testified that he could not see the plaintiff’s decedent; that for a great many years he had suffered from defective eyesight; that he could see nothing with his right eye; that the sight of his £■- left eye was seriously impaired, and that he would pass people in the street who would speak to him but he could not recognize them. The accident occurred in January, 1895, at which time he had been ¡about a year in the defendant’s employ. He' testified that he had two accidents prior to the one in question, both occurring at night, ■one six or seven months before, when he ran into a wagon ahead of. him, because he' was unable to see it, and one only two or three months before, when he ran into a milk truck, because he did not ¡see it Until he hit it. He admitted that, on the investigation of that collision by the inspectors or officers of the company, he ■explained to them that the collision occurred because of his inability to see. He appears to have been suspended then, but was ■afterwards restored to his position because no charges or complaint was made.

It appears that he made no distinct statement to the officers of "the defendant to the effect that his eyesight was defective, and there is general evidence tending to show his competency to operate a car; but the proof was certainly sufficient to take the case to the jury, and if credited, to support a conclusion that he was not physically competent, that the accident was caused thereby, and that the defendant ■could and would have discovered his condition in the exercise of reasonable diligence.

The judgment and order should, therefore, be affirmed.

Judgment and order unanimously affirmed, with costs ; Sewell, •J., not sitting.  