Mueller v. International Railway Co.

Judgment and order affirmed, with costs.

(dissenting). The plaintiff, a conductor in the employ of the defendant, was hit by a post and injured while riding on the running board of an open car of the defendant, which was one of extra length. This post was on a curve in the road, and the plaintiff had passed it only four times while acting as conductor on an open car. By reason of the curve there was little danger that he would be hit by the post while on the running board, unless he was near the center of the car. I think the case is distinguishable from Drake v. Auburn City Railway Co., 173 N. Y. 466, 66 N. E. 121. In that case the gist of the opinion is that the plaintiff’s intestate had passed the tree which struck him, as conductor or motorman, over 200 times, and the court assumes that he had knowledge of the proximity of this leaning tree. We cannot indulge that assumption in this case. The plaintiff testified that he did not know of this post. Texas Railway Company v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164, 49 L. Ed. 382, is a recent and pertinent decision.

HISCÓCK, J., concurs.