(69 Hun, 488.)
MEEK v. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, General Term, Third Department.
May 9, 1893.)
Injury to Bkakeman—-Negligence—Question fob Jury.
Whether failure of a railroad company to keep blocked a frog in which a brakeman’s foot was caught while attempting to uncouple a car is negligence is a question for the jury.
Appeal from circuit court, Albany county.
Action by Jennie L. Meek, as administratrix of Thomas R. Meek, deceased, against the New York Central & Hudson River Railroad Company, for the death of plaintiffs intestate, a brakeman in defendant’s employ, who, while uncoupling a car, caught his foot in the spring of a frog, and was run over. Judgment for plaintiff. Defendant appeals.
Affirmed.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Harris & Rudd, (Hamilton Harris, of counsel,) for appellant.
Parker & Fiero, (J. Newton Fiero, of counsel,) for respondent.
HERRICK, J.
It seems to me that this case turns upon questions of fact, which were finally submitted to the jury. The question as to whether the intestate attempted to uncouple the cars while they were in motion is a matter to be submitted to the jury. There does not seem to be any positive evidence either way. There was evidence that there was a block in the frog before the accident; that it had been removed, apparently, the day of the accident. The question whether intestate’s foot got caught in the frog when the block had been taken out was for the jury. Whether it was negligence not to have it blocked, or keep it blocked,—it having been blocked,—was also for the jury. I see no occasion for an opinion.
. Judgment should be affirmed, with costs. All concur.