Drake v. New York Cent. & H. R. R. , 80 Hun 490 ( 1894 )

MAYHAM, P. J.

There was no evidence in this case of negligence on the part of the defendant which would justify the submission of that question to the jury. The only evidence relied upon by the plaintiff to establish the fact that the defendant failed to furnish sufficient and suitable lamps was the testimony of the plaintiff of the declaration of the defendant’s brakeman. That was clearly hearsay, and amounted to no proof of the fact, and cast no burden upon the defendant of proving the contrary, or negativing that unsworn statement. It did not overcome the legal presumption that competent and sufficient servants were employed by the defendant. Potter v. Railroad Co., 136 N. Y. 77, 32 N. E. 603. Nor does the testimony of the plaintiff that he saw no light, and heard no torpedoes explode, overcome that presumption.

The company had furnished adequate rules governing the conduct of its employés, and if the coemployés of the plaintiff failed in the observance of those rules, and the plaintiff was injured for want of such observance, it was the consequence of the negligence of the coémployés for which the defendant is not liable. There was therefore nothing to be submitted to the jury, and the learned trial judge properly dismissed the plaintiff’s complaint. Judgment affirmed, with costs. All concur.