Baecht v. Marsh Bros. & Gardenier, Inc.

CRAIG, Acting P. J.

The plaintiff and the intervener in an action for personal injuries appealed from a judgment of nonsuit, upon the ground that under the doctrine of last clear chance a question of fact within the exclusive province of the jury was presented.

The defendant and respondent operated small construction trains in a switch-yard of the intervener railway company, upon several easterly and westerly lines of track, as an independent contractor. The plaintiff was a welder of steel rails installed in said company’s tracks, as an employee of the latter. He had completed the inspection of his previous work upon one line by looking in between the cars of a train then standing thereon, and had started in a slightly northeasterly direction, about to step on to a near-by parallel track, when he heard a shout of warning from the defendant’s superintendent whom he had just left, and was immediately struck by a train of repair-cars which came from the west. In his action against the contracting corporation it was alleged that the defendant so negligently operated its engine that it ran into and collided with his person, resulting in his permanent injury. The defendant joined issue, alleging that the plaintiff negligently, without looking where he was going, and without precaution to ascertain the presence of said engine, stepped from a place of safety into the path on which the engine was traveling The plaintiff’s employer, the intervener, alleged that, the defendant had been negligent, that subsequently said employer had expended large sums of money pursuant to the Workmen’s Compensation Insurance and Safety Act for hospital and medical care of the plaintiff, and prayed

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recoupment from the defendant of any theretofore paid or which the intervener might thereafter he compelled to pay to the plaintiff.

Contributory negligence is conceded. The plaintiff testified that he was familiar with the various lines of parallel road operated in the yard, that he was an experienced employee, and that he had seen the trains “running up and down frequently; every 7 or 8 or 10 minutes”. It was testified by the superintendent: “He was standing right beside the engine first, and he started to walk towards the tracks. I saw him right up until the time he was struck. He did not get between the rails on the construction company’s tracks. ... I was 10 or 15 feet from him when I saw him put one foot on or near the rail. When I saw him put his foot on the rail the engine was right upon him.” “I don’t know whether I looked at it or not, but it would have been in sight had a person looked in that direction. It was coming from the west and going east.” It was elicited from the engineer that he was running easterly at a speed of about 10 or 12 miles per hour with eight cars weighing approximately 32 tons; that “when Mr. Marsh first hollered, he said, ‘Look out’, and then I applied the brakes and when I got my eye on Baecht it looked like he was in about 6 or 7 feet of the locomotive, stepped afoul—backward into the locomotive. ... I think Baecht was 6 or 7 feet from me when Marsh hollered; it was the same distance from Baecht when I first saw him.” None of the essential facts as related by other witnesses are controverted by the plaintiff. From the brief moment afforded him for observation of the sudden occurrence, he was able to recall that he anticipated the approach of a train from the opposite direction. He swore,, however, that he saw none, hut: “I don’t think I looked behind me to see whether or not there was one coming from the west. I was looking east. . . . The first intimation I had that a train was about upon me or coming towards me was when I heard a shout ‘look out’. . . . I didn’t look, I didn’t stop to look, I jumped; I tried to jump anywhere, but it was too late.” -An eye-witness who rode on the train corroborated the plaintiff in the following language: “After I heard these men hollering I turned around and I had not more than turned around until we hit him.”