
    Lottie Lane, as Administratrix, etc., of James W. Lane, Deceased, Appellant, v. New York, Ontario, and Western Railway Company, Respondent.
    Second Department,
    November 23, 1910.
    Railroad — negligence — death of • brakeman — proof not justifying recovery.
    There can be no recovery for the death of a brakeman who entered between the bumpers of adjoining cars at the moment the train was brought to a standstill on a slight up grade, and when the engineer, following the custom, threw the lever governing the movement of the locomotive into a neutral position so that the train sagged back about six inches, where it appears that such sag was usual where a heavy train comes to a standstill, could not have been avoided by any care on the part of the engineer, and the deceased when last seen by him was standing in a place of safety.
    
      Appeal by the plaintiff, Lottie Lane, as administratrix, etc., from . a judgment of the Supreme Court in favor of. the defendant, entered ,in the office of the clerk of the county of Orange on the 4th day of December,. 1908, as amended' by an order fentered on the 4th day of January, 1909,- upon the dismissal of the complaint by direction of the court, a jury having theretofore rendered á verdict in favor • of the plaintiff for $5,000; and also from an order entered in said clerk’s office on the 4th day of December, 1908, as resettled by an ordér entered on the 4tiff day of January, 1909, dismissing the complaint and directing a nonsuit. •
    
      E: E. ELigbee, for the appellant.
    
      John Bright, for tlie respondent.
   Woodward, J.:

The evidence in' this ease discloses that the defendant’s servants ran a.train into the yard and"up to the station at Campbell Hall, N. Y., where the same was gradually brought to a standstill; that plaintiff’s'intestate, employed as head brakeman on this train, known as a special coal train, rode into the yard upon the engine; that while the .engine was still moving slowly he said to the engineer of the locomotive that he would go and seé if any cars were to be 'taken on, and that lie' thereupon jumped from the loco motive, and walked over to the station platform, where he entered into conversation with the station, agent in reference to the taking, on of cars.; that while plaintiff’s intestate was thus engaged the train ' gradually came to a complete standstill, and the engineer, following the custom, threw the lever,. which determines the forward or ' • backward movement of the locomotive, into' the neutral position'; ■ that With this action on the part of the engineer the locomotive sagged back about six inches, and afterward the engineer saw. plain-' tiff’s intestate at a' point near the rear of the locomotive and between the engine and the first car of the train; that he.walked over and sat .down upon a near track, atid that in about two" minutes the engineer noticed that he appeared to be injured ;. that the engineer went to his assistance, sent for a doctor and took him tó a hospital, where he died soon afterward. There was evidence that tliere.were prints of the dead wood or bumpers upon tlie plaintiff’s intestate’s overalls, covering the abdominal space, and the inference might properly be drawn that the intestate had stepped between the locomotive and the car for the purpose of uncoupling the engine at the exact moment that the locomotive was put into a neutral position and sagged back into the train, but where is the negligence in this ? The train was operated in the usual manner; it came to a full stop and the enginéer threw his lever into a neutral position, and the relaxation of the springs and drawing mechanism óf the locomotive caused the locomotive to sag back just as is always the case when a heavy train comes to a standstill, and there was no evidence in the case that this could have been avoided by any possible degree of. care on the part of the engineer. When the engineer last- saw the plaintiff’s intestate he was in a place of safety; the train at the time was just coming to a standstill, and the engineer turned his attention to properly adjusting his levers while the train was at rest. How the intestate reached the point of danger is not shown; there is no evidence that he in any manner indicated an intention of going between the cars, or between the locomotive and the cars, and how the defendant could have been guilty of negligence in not anticipating that he would do so, and in not guarding against tins mere relaxing movement of the locomotive, is more than we have been able to comprehend; more than counsel has been able to suggest. Even were this a case where it might be held that the mere happening of the accident raised a presumption of negligence, the only suggested cause of the accident explains itself; the common experiences of mankind establish that a heavy freight train, this one having thirty-two cars, brought to a standstill, upon a slight grade, will relax a trifle .when the drawing power is released, and the evidence in this case, afforded by the plaintiff’s witness, is that the locomotive sagged back about six inches. It was a perfectly normal condition, and one in which there was no danger to be anticipated, unless some one happened at the particular moment to be between the locomotive and the car in the rear; it was certainly a danger as obvious to the plaintiff’s intestate, who had been at work for some time in his capacity as brakeman, as it could have been to the defendant or its engineer, and no way is suggested in which the accident might have been avoided, much less of any reasonable regulation that could.have been made which would have. . suggested, itself to any reasonable-minded man in advance of the accident.

'The judgment appealed from should be affirmed.

Present — Woodward, Burr, Thomas, Rich and Carr, JJ.

Judgment unanimously affirmed, with costs.  