McNeil v. New York, Lake Erie & Western Railroad

BARNARD, P. J.

Arthur McNeil, on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant, and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between the guard rail and the main rail. . The negligence claimed on the part of defendant is that the company did not block the guard rail, which is done by placing in the open space between the two rails something which would prevent the foot of an employe from being caught between the two rails. The rule is that an employe assumes the risk of the employment. Kern v. Refining Co., 125 N. Y. 50 , 25 N. E. Rep. 1071; Davidson v. Cornell, 132 N. Y. 228 , 30 N. E. Rep. 573. The master is not bound to furnish the best ldnd of appliances, or to give an extreme character to the structure, so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked, and some not. The case cannot be distinguished from the case of Appel v. Railroad Co., 111 N. Y. 550 , 19 N. E. Rep. 93. The nonsuit was therefore right, and the judgment should be affirmed, with costs. All concur.