Luce v. New York, Chicago & St. Louis Railroad 239 N.Y. 601

Cora B. Luce, as Administratrix of the Estate of Walter M. Luce, Deceased, Appellant, v. New York, Chicago and St. Louis Railroad Company, Respondent.

Negligence — master and servant — railroads — action to recover for killing of locomotive engineer — failure of proof of violation of Federal Boiler Inspection Act,

Luce v. N. Y., Chicago & St. Louis R. R. Co., 209 App. Div. 728, affirmed.

(Argued December 5, 1924;

decided December 19, 1924.)

Appeal from a judgment, entered July 24, 1924, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer. The deceased, an experienced railroad engineer, was run over and killed by his own engine while attempting to lubricate the air pump. In order to do this he had released the air from the pump, thus rendering the air brakes useless. In the meantime a brakeman on the cars attached to the locomotive released the hand brakes and the train started by gravity down grade and the accident occurred. The complaint charged a violation of the Federal Boiler Inspection Act. The Appellate Division held that there was no proof of improper condition of the engine making its use dangerous.

Hamilton Ward for appellant.

Evan Hollister for respondent.