Connaughton v. Brooklyn & Brighton Beach Railroad , 34 N.Y.S. 243 ( 1895 )

Van Wyck, J.

The trial court granted a motion for non-suit and directed the exceptions taken thereto to be heard in the first instance at the General Term. The defendant controls a regular steam railroad running from Atlantic avenue, Brooklyn, to Coney Island, with regular stations for taking on and letting off passengers. It appears that on August 8, 1892, the plaintiff, a boy of fifteen years, was asked by Engineer Van Brunt, who was standing by his engine, to get him twenty cents worth of paint; that he went to a neighboring store for the same, and on returning with it he found Van Brunt and his engine gone; that plaintiff then went to the flaghouse between two stations and waited there about an hour, explaining to Marshall, the switchman, his errand for the paint; presently another train having started for Coney Island came along at about three miles an hour, the engineer of which saluted this switchman by a single wave of the hand, a common thing in this and all railroad yards. This switchman, having in mind the story of plaintiff and his paint can, suggested to him that perhaps this was the engineer who sent him for the paint, and “ imagined ” that this engineer was looking out for plaintiff, and so told him, when plaintiff ran and jumped on the step of the next to the last car of this moving train. As he did so he says he felt a violent jar which caused him to lose his balance and fall off, injuring him most seriously. It is likely he did feel it, for such jars are incident to the moving of a steam train and were especially so here, because the train was turning from the incoming track across' to the outgoing track at this juncture.

We think the evidence falls far short of establishing the claim that this engineer invited the plaintiff to get on his train, or that the accident was due to the negligence of defendant. It is manifest that this young man’s sad misfortune is directly chargeable to his own indiscretion in voluntarily assuming the chances of the dangers attending the boarding of a moving train, a hazard which, perhaps, he would not have taken except for the unwise advice implied in the expression of this switchman’s thought that this engineer was looking out for the boy. This thought, it is clear, was the result of the switchman’s imagination, awakened by the association of the story of the paint can and 'the usual salute by a wave of the hand of the passing engineer to the yard employees of his company. The conduct of the switchman in this respect cannot render the defendant liable.

This 'case does not come within the rule of a line of authorities, illustrated by Rounds v. Del., L. & W. R. R. Co., 64 N. Y. 129, in which a company has been held liable for negligently exercising its right of removing one who is not a passenger, but rather within the rule declared in Hunter v. C. & S. V. R. R. Co., 126 N. Y. 18.

The exceptions must be overruled and judgment ordered for defendant, with costs.

Osborne, J., concurs.

Exceptions overruled and judgment ordered for defendant, with costs.