Fay v. Interborough Rapid Transit Co.

Plaintiff was in the employ of the defendant as a guard on the elevated railroad. The train upon which he was employed became disabled through some defect in the electric appliances in the *155first car. In order that the motorman could run the train from am other motor car, it became necessary to> cut off the current from the first car. The conductor ordered the plaintiff to assist the motorman. The motorman and plaintiff descended to the track and were engaged in raising the shoe, which rests upon the third rail, and tying it up, in order that there might be no contact with the third rail, which carries the electric current. In order to do this work it was necessary for the plaintiff to stoop down alongside the train between the tracks upon which his train stood and the track upon which express trains were running. The train stood, not at, but between, stations. No one was detailed, either to warn the plaintiff of an approaching train or signal such train. While engaged in his work an express train passed, and without any warning signal having been given struck plaintiff, inflicting serious injuries.

The action was brought under the Employers’ Liabilty Act. At the end of plaintiff’s case the court granted defendant’s motion to dismiss the complaint. This was manifest error. The plaintiff had proved a prima facie case of injury by reason of the negligence of the defendant, and it did not appear as a matter of law that he was chargeable with contributory negligence.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.