This action was commenced September 19,1889. The complaint, alleges that on the 11th of November, 1887, Thomas Fitzgerald, plaintiff’s intestate, was in the employ of the defendant as brakeman, and was making his first trip as such brakeman ; that it was-necessary and imperative for the proper performance of his work for him to go upon the tops of the freight cars when in motion, and that on the eleventh of November, while in the discharge of his-duties as such brakeman, he was ordered out on top of the freight train, which was then in motion, and while he was engaged and occupied in the execution of his duties, the train was moving east-' wardly in close proximity to a bridge overhanging the tracks of the-road, and the intestate was struck by the bridge and received injuries which caused his death.. The bridge was located near the station known as Green’s Corners. It was alleged that the bottom of said bridge was only about four feet from the top of the freight car upon which Fitzgerald, the intestate, was standing at the time' he was struck. It is alleged that no telltales or warning signals-were maintained by the defendant at or near the approaches to said:
On the 23d of January, 1889, letters of administration upon the goods, etc., of the intestate were issued to the plaintiff. The intestate left him surviving his father and his mother, who were dependent upon him for support. The intestate was unmarried.
The answer of the defendant admits its incorporation, and alleges that the accident to the intestate “ was wholly due to the carelessness, negligence, want of care and acts of the said Thomas Fitzgerald, and not otherwise.”
The issues were first brought to trial in 1890, at a Circuit Court held in the county of Herkimer, and a verdict was rendered in favor of the plaintiff for $3,000. An appeal was taken from the judgment entered upon that verdict, and in February, 1891, the case was heard in the General Term of the fourth department and an opinion was delivered which led to the reversal of the judgment, and in the opinion, which was reported in 59 Hun, 225, it was said that a brakeman “ who is aware of the fact that no warning signals have been placed at a bridge which crosses the tracks, and that the bridge is so low as to render it dangerous, and who is injured by such‘bridge by reason of his not exercising the care necessary to enable him to escape the consequences of such defect, is guilty of contributory negligence which precludes his recovering damages from the’railroad company, although the railroad company has violated the provision of chapter 439 of the Laws of 1884, requiring that suitable warning signals should be placed at such bridge.” At the trial then under review Mitchell, the conductor of the train, was called as a witness in behalf of the plaintiff, and his credibility was thereby vouched for by the plaintiff, and gave evidence pertinent to the inquiry whether the plaintiff’s intestate was free from contributory negligence.
The issues were again brought to trial at the Herkimer Circuit in 1894, and the jury rendered a verdict for $3,000 in favor of the
Upon the trial now before us evidence was given tending to show that the train on which the deceased was killed had an Armour 'refrigerator car next to the engine and several other Armour and Swift refrigerator cars, and some blood was observed by a witness on the left-hand side of the first refrigerator car; and a witness who went on the day of the accident to Rome and saw the body of the
Dr. Millington was called as a witness for the plaintiff and testified that he was one of the coroners of the county and that he attended upon the occasion of the inquest upon the body of the deceased in November, 1887, at Wiggins’ undertaking rooms in Rome. The witness says: “ There an examination was made by Dr. E. J. Lawton, Dr. E. S. Millington and myself. We found upon the body of Thomas Fitzgerald a fracture of the occipital bone, about three inches back of the ear. It was a multiple fracture and the bone depressed upon the brain tissue, and there was several smaller fractures; that is, multiple fractures; the bone was broken in several places and there was blood oozing from both ears and there was a slight abrasion of the face. There was no autopsy made. The injuries which we found were sufficient to produce immediate death. There was about three inches of fracture; the bones were broken up in small pieces. * * * There was a multiple fracture, that is, the skull was broken in several pieces and pressed in the brain. * * * I think the cause of death was the concussion to the brain and the hemorrhage which he had from each ear. I should think it might produce a rupture at the base of the brain. The spot that was pressed in was about the size of a quarter.”
In the course of the charge delivered by the learned trial judge he said: “In the first place, how did Fitzgerald meet his death? There isn’t any dispute but what upon this occasion, upon this lltli of November, 1887, a little west of Rome, he was on top of a freight car in one of the defendant’s trains. That he went upon this car shortly before a bridge was reached which runs over the defendant’s road at this point. That at some point after that bridge had been passed by this train it was discovered that Fitzgerald was lying upon the car dead, or nearly dead. In addition to that, evidence has been given upon this trial in regard to certain wounds and injuries which were found upon his person, and evidence has been given with reference to certain blood which it is claimed was seen upon this car. Evidence has also been given here with reference to the height
We think the evidence given on this trial abundantly warranted the trial judge in making the comments which we have quoted, and others of like character, and in submitting the question to the jury as to whether the deceased came to his end by reason of coming in contact with the bridge of the defendant under the circumstances, disclosed by the evidence. The evidence seems to be sufficient to satisfy the most stringent construction of the opinion delivered in the Court of Appeals, to which reference has been made ; and that the plaintiff has given evidence satisfactorily sustaining the burden of showing that the death was caused by contact with the bridge.
(2) In May, 1884, the Legislature passed an act entitled “ An act for the better protection of life and property upon the railroads of this State, to promote safer and better management of steam railroads.” (Chap. 439, Laws of 1884.) The 2d section of that act is as follows : “ Every steam railroad shall, within six months after the passage of this act, erect, and thereafter maintain, such suitable warning signals at every low bridge or structure which crosses the railroad above the tracks, where such warning signals may be necessary for the protection of employees on top of cars from injury.”
Lincke, the fireman on the train when the accident occurred, testified that the accident occurred just before daylight in the morning. “ It occurred at Wheeler’s Bridge over the tracks near Green’s Corners. It was a cold, windy morning; very disagreeable. * * * I saw deceased on top of the car before the accident occurred at a point west of Wheeler’s Bridge, a very few moments before it occurred. Think he was standing on the,next car to the engine. I don’t remember what kind of a car it was. I couldn’t say whether it was higher than an ordinary car. When we passed under the bridge of course the train made a different sound going under the bridge. I looked for this man as soon as we passed through under the bridge and the smoke cleared away, and I couldn’t see him, and I went back to look for him. I found him lying on top of the first car. I came back and reported to the engineer that he should shut
It is contended by the learned counsel for the defendant that the deceased in entering the employment of the defendant, because its nature was necessarily hazardous, “ thereby assumed the usual risks and perils of the service, and also those which were apparent to ordinary observation.” The assumption made by the learned counsel seems to leave out of view the fact that the intestate had a right to assume that the defendant had performed its duty and obeyed the statute by erecting telltales and maintaining them in the vicinity of bridges like the one that caused the injuries to the intestate.
It is insisted also by the learned counsel for the defendant that the deceased had an opportunity to learn and know that there were no telltales, and that it was a low bridge, and that his attention had been called to that fact by the conductor. We think the trial judge, in his charge, sufficiently submitted the question to the jury to determine whether the deceased was properly upon the top of the car at the time he received the injuries. He said: “ Of course, if you should find that it was not necessary; that he unnecessarily and without any adequate cause whatever went up upon this car and was careless in that respect, why then the defendant would have established that ground of contributory negligence. If you should find the other way upon it, that he was justified in doing as he did do, then you would consider this other question, which I have already commented upon somewhat at length. Whether upon the evidence, as you shall find it to be true in this case upon the one side or the other, this man knew, or ought to have known, that he was approaching that bridge upon that night, and so have looked out for it and avoided this accident which is said to have happened to him there. If you find upon that question in favor of the defendant; that he was careless there; that he knew about this bridge, or ought to have known about- it, and did not exercise proper care, that, again, would establish this defense of contributory negligence and be a bar to recovery.”
We think the learned trial judge committed no error in refusing to charge, as matter of law, that the deceased assumed the risk of coming in contact with this bridge, and that he was correct in con-
When this case was before the General Term, as reported in 88 Hun, 359, it was held “ That if the deceased knew the location of the bridge, and that it was a low one, but, by reason of being occupied at the time in the discharge of his duties, did not notice his approach to it, he would not necessarily be charged with contributory negligence.” That doctrine has been followed by this court and the case cited with approval in Benthin v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 303).
In Wallace v. C. V. R. R. Co. (138 N. Y. 302) it was held that “ A brakeman on top of a moving train, as matter of law, is not chargeable with negligence simply because he does not constantly bear in mind the precise location where his train and where every bridge over the track is.” That case was referred to and commented upon in McGovern v. Standard Oil Co. (11 App. Div. 596); and also in Benthin v. N. Y. C. & H. R. R. R. Co. (supra), which latter case cites Ferren v. Old Colony R. R. Co. (143 Mass. 197).
We think the questions whether the defendant was negligent, and whether the plaintiff’s intestate by his own negligence contributed to the accident, were for the jury, and that their verdict should be sustained.
We have’ looked at the exceptions and do not find that they present any error which requires us to interfere with the verdict.
We think we ought not to interfere with the verdict on the ground that the damages are excessive. The deceased, at the time of his death, was nearly twenty-two years of age, in good health; and there is some evidence that he paid $20 a month to his mother for his board and washing. Nor do we think that the circumstance that the two prior verdicts were for $3,000 each indicates that the jury in the third trial of this case was influenced by passion or prejudice in delivering its verdict for $3,500.
We think the learned trial judge was warranted in denying the motion for a new trial made upon the minutes.
All concurred, except Ward, J., not voting.
Judgment and order affirmed, with costs.