the owner of the land over which the highway passes, commits a nuisance, if he places in the highway an obstruction with which horses or vehicles may come in contact, or which is calculated to frighten horses of ordinary gentleness, unless the obstruction be reasonably necessary for the conduct of his business, and at the same time does not unreasonably interfere with the right of the public to make use of the highway.

Whether or not the evidence in this case justified the claim of the defendant that its action in placing the sticks where it did was reasonably necessary in the conduct of its repairs, and not an unreasonable interference with the rights of the public, presented a question of fact. This is obviously so, but in addition it should be said that it has been so decided by this court. Callanan v. Gilman, supra; Flynn v. Taylor, supra; Hudson v. Caryl, 44 N. Y. 553. It was the duty of the court, therefore, to submit to the jury, under all the facts of the case, the question whether the use which the defendant made of the highway was necessary and reasonable, within the rule we have referred to. This the court did, in a charge which was fair and free from legal fault.

As there was no error in the rulings of the court in admitting or rejecting evidence, it follows that the judgment should be affirmed, with costs.

All concur (HAIGHT, J., in result), except O'BRIEN, J., dissenting, and MARTIN, J., not sitting.

Judgment affirmed.

FARRELL v. TATHAM ET AL.

Supreme Court, New York, Appellate Division, Second Department, January, 1899.

an

MASTER AND SERVANT-RISK OF EMPLOYMENT. - Where employee had worked in a shot tower for some months, and knew that some of the kettles used for holding the molten lead had no hoods on them, and that the lead sometimes splashed from such kettles, he assumed the risk of injury that resulted from such splashing.

APPEAL from judgment, Supreme Court, Trial Term, Kings County.

CHARLES C. NADAL (EDWARD P. MowтON, on the brief), for appellants.

PATRICK KEADY, for respondent.

WILLARD BARTLETT. J.-The plaintiff was injured in jumping from a platform to avoid the splashing of molten lead out of a kettle

near which he was at work for the defendants, in their shot manu factory, in the city of New York. This kettle had no hood over it. There were twelve or fifteen kettles, in all, in the establishment, of which seven or eight had hoods over them, if we may believe the testimony of one of the defendants, while nearly all were hooded, if the evidence in behalf of the plaintiff is correct. According to this defendant, the hoods are put over the kettles solely to carry off the fumes which rise from the melting metal, while, according to the plaintiff's witnesses, the hoods are intended to serve the further purpose of preventing the lead from splashing out on the workman The splashing which the plaintiff sought to escape when he was injured immediately followed the act of his foreman in putting a pig of lead into the molten metal, which already filled the kettle to three-fourths of its capacity. The evidence does not show whether the impact of the solid lead against the liquid lead forced the latter out of the kettle, or whether the splashing was due to the presence of moisture upon the surface of the pig lead, which moisture was changed into steam by the heat in the kettle, although there is testimony which suggests the latter as the true explanation of the accident. Whatever may have been the fact in this respect, the only ground which the proof discloses for charging the defendants with negligence is their failure to provide a hood for the kettle on the platform whence the plaintiff jumped. While it was proved that the hoods did not wholly prevent the lead from splashing out, it is apparent that they must have afforded the workmen some protection. The plaintiff, however, knew that there was no hood upon the kettle on the platform where he was at work. He had been employed in the shot manufactory of the defendants for months. He was thoroughly familiar with the process of lead melting as carried on there, and had repeatedly seen the lead splash out of this very kettle, as well as out of the hooded kettles. He was aware of the danger, and exposed himself to it, with complete knowledge as to its presence and character, and, so far as appears, without complaint, objection, or remonstrance. It seems to us that the only inference fairly deducible from the evidence is that the plaintiff voluntarily assumed the risk of any injury which might happen to him from the splashing of molten lead out of the kettle in the manner in which it occurred when he was hurt, and hence that he ought to have been nonsuited on the trial. Kaare v. Iron Co., 139 N. Y. 369, 34 N. E. Rep. 901.

This view compels us to reverse the judgment.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.

WALLACE v. THIRD AVENUE RAILROAD

COMPANY ET AL.

Supreme Court, New York, Appellate Division, First Department, January, 1899.

JOINT TORT FEASORS. The dismissal of the complaint as to one of two joint tort feasors cannot be complained of by the other.

RUN OVER BY PASSING TRUCK AFTER FALLING FROM STREET CAR. - Where the evidence on the part of the plaintiff tended to show that as defendant's car approached a crossing and had nearly or quite stopped to allow plaintiff's intestate to board it, and after he had got on the car it was suddenly started with a jerk, and he was thrown to the ground and was run over by a truck that happened to be passing and sustained injuries from which he died, and the defendant's evidence tended to show that the intestate slipped and fell before he reached the car, the question of negligence was properly submitted to the jury. BOARDING MOVING STREET CAR.

- An attempt to alight from or board a

moving street car is not contributory negligence per se (1).

DAMAGES - VERDICT. — Where it was shown that the deceased at the time of his death was forty-three years of age, in good health, and left five children who were dependent upon him for support, and his salary had been $1,250 a year, a verdict for $9,000 was not excessive.

APPEAL from judgment, Supreme Court, Trial Term, New York County, in favor of plaintiff.

NATHAN OTTINGER, for appellant.

EDWARD C. JAMES, for respondent Mary Wallace.

GRANT C. Fox, for respondent David Mayer Brewing Co.

MCLAUGHLIN, J. On the 18th of May, 1897, Thomas Wallace, in attempting to board one of the cars of the defendant railroad at the intersection of Third avenue and Eighty-fourth street, in the city of New York, was run over by a wagon of the defendant brewing company, and so injured that he died within a few hours thereafter. This action was brought to recover the damages alleged to have been sustained by the next of kin, upon the ground that his death was caused by the negligence of the defendants. Upon the trial, at the close of the plaintiff's case, a motion was made by each defend

1. For actions relating to injuries sustained while Alighting from, or Boarding Trains, Street Cars, etc., decided in New York, from the earliest

and in the Federal Courts, covering the same period, see vols. 2-7, Am. Neg. Cas. For subsequent actions, see vols. 1-4, Am. Neg. Rep., and the cur

period to 1896, see vols. 5 and 6, Am. rent numbers of that series. Neg. Cas. For actions in other States

ant to dismiss the complaint, which was granted as to the brewing: company, but denied as to the other defendant. A similar motion was also made by the railroad company at the close of the case, and denied. The jury returned a verdict of $9,000; and from the judgment entered thereon, and from the order denying a motion for a new trial, the railroad company has appealed.

We are asked to reverse the judgment on the ground that the trial court erred in denying the motions made by the railroad company to dismiss the complaint, and in submitting the case to the jury. It is unnecessary to determine whether the complaint was properly dismissed as to the brewing company, for the reason that the plaintiff has not appealed, and the defendant railroad company cannot complain of the judgment in that respect, since its rights were in no way affected by it. If the deceased lost his life by the negligence of both. defendants, then the plaintiff had the right to maintain the action. against either or both of them. Both were not necessary parties to the action, for the reason that there was a separate liability as well as a joint one. Creed v. Hartmann, 29 N. Y. 591; Wehle v. Butler, 61 N. Y. 245; Weidman v. Sibley, 16 App. Div. 616, 44 N. Y. Supp. 1057. The question then remains, did the trial court err in refusing to grant the motion made by the defendant railroad company to dismiss the complaint as to it? After a careful consideration of the record, we are satisfied that the ruling was correct. The evidence. on the part of the plaintiff tended to show that the defendant's car as it approached the crossing was brought nearly or quite to a stop,. for the purpose of enabling the deceased and another person to step aboard, and that while the deceased was in the act of doing so, and after he had partially entered the car, the car, without any notice to him, was suddenly started with a jerk, and he was thereby thrown. from it to the ground, and run over by the brewery wagon, which happened to be passing at that time. This is substantially what the plaintiff's witness Curran testified, and he was corroborated by the plaintiff's witnesses Stanley and Kamper. This being the situation at the close of the plaintiff's case, it requires neither argument nor authority to show that the motion to dismiss was properly denied. It was the duty of the railroad company, while the deceased, to the knowledge of its servants, was entering the car, either not to start the car until he had reached a place of safety, or else so to start it that he would not be injured, Akersloot v. Railroad Co., 131 N. Y. 599, 30 N. E. Rep. 195 (1); and whether it performed its duty in this respect was, under the evidence then presented, for the jury to 1. Akersloot v. Second Ave. R. R. Co., 131 N. Y. 599, is reported in 5 Am.. Neg. Cas. 359.

determine.

Neither do we think the court erred in refusing to dismiss at the close of the case. The evidence of the defendant tended to show that the deceased did not get on the car, and was not thrown from it, but that he slipped and fell before he reached it. This is substantially what the defendant's witness Gorman, the conductor of the car, testified; and he was corroborated to a certain extent by some of the defendant's other witnesses. With this conflict of testimony existing at the close of the whole case, it can readily be seen that a question of fact was presented, which was properly submitted to the jury for determination.

The question of the deceased's contributory negligence was also properly submitted to the jury. It cannot be said, as matter of law, that a person is, under all circumstances, negligent, if he attempts to enter or leave a street car while it is in motion. It depends entirely upon the speed of the car, and the question when presented is usually for the jury to determine. Eppendorf v. Railroad Co., 69 N. Y. 195 (1); Distler v. Railroad Co., 151 N. Y. 424, 45 N. E. Rep. 937, I Am. Neg. Rep. 135 (2).

The appellant also insists that the learned trial court erred in refusing to instruct the jury that, if they believed "the accident happened in the manner described by the defendant's witnesses, their verdict must be for the defendant.” We think this request was properly refused. The testimony of some of the defendant's witnesses — notably, that of Seidel — tended to corroborate the plaintiff's witnesses as to the manner in which the deceased was injured. Seidel testified that the car started up just a little, and the deceased fell from the step. The jury might, therefore, well have believed the testimony given by some of the defendant's witnesses, and still have rendered a verdict in favor of the plaintiff. Other errors are alleged, both as to the charge as made and to refusals to charge, but they are without merit, and do not need consideration.

Finally it is urged that the damages awarded by the jury are excessive. We do not think so. The deceased at the time of his death was forty-three years of age, in good health, and receiving a salary of $1,250 a year from the city of New York; he being at the time a member of the police force of that city. He left him surviving, five children, all dependent upon him for support; the oldest, a daughter, twenty-one years of age, and the youngest, a son, ten years of age.

1. Eppendorf v. Brooklyn City and Newtown R. R. Co., 69 N. Y. 195, is reported in 5 Am. Neg. Cas. 219.

2. Distler v. Long Island R. R. Co.,

151 N. Y. 424, I Am. Neg. Rep. 135, reverses the decision in same case in 78 Hun, 252, 5 Am. Neg. Cas. 589.