
    Oswald D. France, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
    Fourth Department,
    March 6, 1907.
    Negligence — injury hy shifting railway -switch — erroneous nonsuit.
    In an action by the conductor of a railroad to recover damages for injuries received, it appeared that the'locomotive, and first cars of the train on passing over a switch took a track bearing to the left, while the rear truck of one car and the remaining cars took the track bearing .to the right. It appeared that the switch in question was controlled from a tower house, .and filesystem had been, installed within a few hours of -the happening of the accident. It was shown that there, was no humping of the wheels .on the ties as if they had left the track, nor were there any marks or scratches on the switch points or car wheels. The cars, and rear truck were free from defects which might have caused the accident.
    
      Held, that a nonsuit was error:
    That on the evidence the jury would have been justified in finding that, the accident was caused by the improper shifting of the switch hy the towerman during the passage of the train, or that the switch was defective.
    McLennan, P. J., dissented. '
    Motion by the plaintiff, Oswald D. France, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit directed by the court after a trial at the Erie Trial Term in October, T903.- ■ '
    
      Trácy 0. Beclter and Alfred L. Beclter, for the plaintiff.
    
      Ira A. Place and Charles A. Pooley, for the defendant.
   Willi amis, J.: -

The exceptions „ taken by plaintiff should he- sustained and the motion for a new trial gi’ánted, with costs to plaintiff tg abide event.

The action is to recover .damages for injuries to plaintiff alleged to have resulted from defendant’s negligence. _

The nonsuit was granted, for failure to make a case for the jury as to the defendant’s negligence. Only this question need be considered here. No other question is raised by counsel. —

The plaintiff was a conductor on the Lehigh Valley railroad, and on the occasion of the accident was upon a train running between Suspension Bridge and Buffalo. Between the bridge and Tonawanda the Lehigh trains used the tracks, and were subject to the control and the rules and regulations of the defendant, the Lehigh having, however, its own train crews. About 1,000 feet from the station at the bridge there was a switch. Lehigh trains for Buffalo at this point took the track bearing off tó the left; other trains took the right track leading upon the Michigan Central tracks and across the bridge over Niagara river. At the time of the accident the plaintiff’s Lehigh train left the bridge station for Buffalo. As it approached the switch in question, the train took the Buffalo track, and the engine and two cars and the forward truck of the third car passed the switch safely and properly, but the rear trucks of the third car, the last car on the,train, took the bridge track, and ran out towards the Michigan Central tracks. As a result, the- third' or rear car was drawn out of shape, was shaken up, and the plaintiff was thrown from the rear platform'and injured. For these injuries this action is brought. There was evidence in. the case tending to show that the rear truck of this car did not leave the rails at all, but merely took the bridge track, while the balance of the train, including the front truck of this car, had taken the Buffalo track. The question, therefore, is what was the cause of the passage of the rear truck of the car in-question to and upon the bridge track. The plaintiff claimed, and we think the-jury might have found, that for some reason the switch was changed while the third or rear car was passing over it and before the rear truck came to the switch. The plaintiff gave evidence tending to show that there xvas no'jumping of the wheels over the ties, as if they were off the track, there were no prints of the wheels in the ground or upon the ties after the accident occurred, and no marks or scratches on the switch points or car wheels. Evidence xvas also given tending to show that the car and the rear truck were free from any defects, which could have caused the accident. If then the switch was changed while the car xvas passing over it, what was the cause of ,the change ? The plaintiff claims that it moved either by reason of defects in the switch or its appliances, or hy reason of the interference of some person having control of the appliances for moving the switch. The switch was controlled from the tower house, the system having been installed within a few hours of the happening of the accident. _ -

• At the close of the plaintiff’s evidence a motion for a nonsuit was made, and the court .then announced: “I am going to submit the case to the jury on the single question as to whether the plaintiff has proved, by a preponderance of evidence, that the negligence of the towerman in the operation of this switch caused this accident, and whether the plaintiff has also proved by a fair preponderance of evidence that nope of the other possible causes of the accident existed.” This would have precluded the .jury from finding that the.accident resulted from a defective condition of the switch or its appliances, for which the defendant would have been liable as well • as for the activé negligence of the towerman fin moving the switch. But after the defendant had given its evidence the court withdrew from the jury the only ground of negligence it had intended to submit, and granted a nonsuit, holding that there was no evidence sufficient to go to the jury that the switch moved while the car was passing over it. In so disposing of the case, however, the court-passed upon the credibility of the.evidence of the man in the tower house and of experts as to the effect and working of the protector bar. We. think the jury might find upon all the evidence that the cause of the accident was the moving of the switch for some reason,. while the car was passing, and that this was not a question to be determined by .the court. 'Counsel have argued this question of, fact on the one side and the other. We do not care to. go into the matter'here. If .the jury might find that the switch moved while the car was passing over it, they might find further that the defendant Was guilty of negligence with reference to' it. It was defective in itself, or the appliances for moving it were defective, or the tower-man was negligent,in operating such appliances, and the accident was so caused. The case should have been submitted to the jury;

All concurred, except McLennan, P. J., who dissented.

Plaintiff’s exceptions sustained, motion for a new trial granted, with costs to the plaintiff to abide the event.  