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App. Div.]

Second Department, October, 1911. own, and the facts alleged, and which we will regard as having been proved for the purposes of this appeal, are substantially as follows: The plaintiff was employed by the defendant on the 18th day of October, 1910, as a mechanic's helper and extra switchman, remaining in this employment up to the nineteenth day of November, at which time he received the injuries. He was assigned to duty in the yard at Jersey City, this yard being in process of readjustment in connection with the Bergen cut, and his duties required him to report to the engine dispatcher at six o'clock in the evening, when he was assigned to his work during the night. On the evening of the nineteenth of November the plaintiff reported for duty and was assigned to throw the switches for the incoming engines, which ran in upon a “lead track,” and were then turned in upon switches for the purpose of having their ash pans cleaned and their coal replenished. The plaintiff had discharged this duty for some fifteen or twenty engines on the night in question, and had discovered that some of the switches had been moved during the day, and that the ties between the rails were not filled in with earth, and that there were various irons known as “ fish plates” and other loose materials scattered around the premises, as would be the case where extensive changes were being made. Just before the accident he was summoned to throw the switches for an engine which was being made ready to go out. At the time of this summons he was at the shanty provided for him, near switch No. 1, as shown upon the diagram in evidence, and after throwing this switch he signaled the engineer to come on, and started down the track toward switch No. 2. He was in control of the enginethe engineer obeyed his signals — and to reach switch No. 2 it was necessary to pass over the “lead track,” which the plaintiff attempted to do at a distance of about eleven feet to the east of the switch and between the oncoming engine and the switch. The plaintiff testifies that as he stepped between the rails of this “lead track” his foot caught upon something which seemed to hold him; that he was thrown down, and that before he could make a signal or get free he felt the engine coming down upon him, and his leg was taken off. The evidence showed that the switch light was set against the oncom

Second Department, October, 1911.

[Vol. 146. ing engine, but the evidence is equally clear that the engine did not approach the switch light nearer than about eleven feet, and was moving very slowly, so that it could be stopped on the instant; and it is not claimed that the plaintiff had in any manner countermanded his signal to the engineer to come forward, so that it must be clear that no negligence can be predicated upon the theory that the engine was not properly operated. The only suggestion in the case of any negligence in this respect is raised by a ruling of the court upon an effort of the plaintiff to establish a so-called custom in reference to the point at which the engine should stop before reaching a switch with the light set against it, but the ruling was so obviously correct that we do not feel that it is necessary to discuss it. The only ground of defendant's negligence worthy of any serious consideration is based upon the plaintiff's claim, partly at common law and partly under the statute, that the defendant had failed to provide a reasonably safe place for him to work; that there was a defect of the ways, works and machinery. The evidence, however, fails to tell us of any defect which was the producing cause of the accident. It is true that there was evidence that the yard had undergone some changes, but the plaintiff was regularly employed there, and not only knew that changes were being made, but he had, on the very evening of the accident, been at work upon this very territory, operating these same switches, and his testimony shows that he was thoroughly familiar with all of the conditions existing at the point of the accident, yet we are left without a particle of evidence as to what actually produced the accident. There is some testimony about “fish plates, but he does not tell us that it was a fish plate which caught his toe, or, if it was, that it was not properly placed or that there was anything unusual about it or inconsistent with the requirements of practical railroading. True, he testifies that the ties between the rails were bare, but there is no testimony that this was not a proper condition at a moving switch in a railroad yard, and the whole case is absolutely barren of any evidence from which the jury might properly find that there was any defect in the railroad at the point where the accident occurred, either as it related to a reason

App. Div.]

Second Department, October, 1911.

ably safe place in which to work, or in respect to the ways, works and machinery of the defendant, assuming that the railroad yard could be held to be a “way," within the meaning of the Employers' Liability Act. The mere fact that the switch had been changed in location, and that there were irons, etc., scattered about the premises is of no possible importance, unless it is shown that there was a defect of some kind at the point of the accident, and all of the plaintiff's testimony in respect to this question is as consistent with perfect conditions of practical railroading as with the theory of a defect. There was no question of negligence to be submitted to the jury. The evidence failed to establish a cause of action, and the learned court properly granted the defendant's motion to dismiss the complaint.

The judgment and order appealed from should be affirmed, with costs.

Present - JENKS, P. J., THOMAS, CARR, WOODWARD and RICH, JJ. Judgment and order unanimously affirmed, with costs.

MARGARET A. HILL, Respondent, v. ELIPHALET MOWBRAY

and Others, Defendants, Impleaded with John ELIPHALET MOWBRAY and SARAH MOWBRAY, His Wife, Appellants.

Second Department, October 27, 1911. Real property- action to determine adverse claim - sufficiency of

proof. Where in an action under section 1638 of the Code of Civil Procedure to settle adverse claims to real property plaintiff proves that she has been in possession of the premises under a claiin of title in fee for more than a year prior to the commencement of the action; puts in evidence her deed and gives evidence tending to show that her grantor had been in possession of the premises for many years, while the defendants offer no competent evidence that they have any title, a judgment in plaintiff's favoi entered on a verdict directed by the court will be affirmed.

APPEAL by the defendants, John Eliphalet Mowbray and another, from a judgment of the Supreme Court in favor of the

Second Department, October, 1911.

[Vol. 1416. plaintiff, entered in the office of the clerk of the county of Nassau on the 15th day of March, 1911, upon the verdict of a jury rendered by direction of the court.

Adolph Feldblum [Charles H. Levy with him on the brief], for the appellants.

Lawrence N. Martin (Frank H. Cothren with him on the brief], for the respondent. WOODWARD, J.:

The plaintiff, proceeding under the provisions of section 1638 of the Code of Civil Procedure, seeks a judicial determination of adverse claims to real property in her possession, and has judgment. The defendants appeal from such judgment.

There is no question but that the plaintiff pleaded a good cause of action under the statute, and her own testimony, that she has been in possession of the premises under a claim of title in fee for more than one year prior to the commencement of this action, is undisputed. The deed under which plaintiff claims title is in evidence, and there is evidence tending to show that her predecessor in title had been in possession of the premises for many years, so that at the close of plaintiff's case she had established, without dispute, every fact essential to the judgment which she now has. The defendants, in their answer, denied all of the material allegations of the complaint, and set up a counterclaim to the effect that they were direct descendants of one Eliphalet Mowbray, deceased, and through him claimed an interest by right of inheritance of the property mentioned and described in the complaint, and demanded judgment dismissing the complaint. No competent evidence of title in Eliphalet Mowbray or of any right or interest in the defendants was offered upon the trial, and the defendants having rested, the plaintiff moved for the direction of a verdict. Defendants objected on the ground that the plaintiff has not made out a case entitling her to a direction, and the learned court granted the motion and directed a verdict in favor of the plaintiff, to which the defendants took an exception, without making any request to go to the jury upon the question of possession, or any other issue.

App. Div.] Second Department, October, 1911.

The practice followed was that approved in Stackhouse v. Stotenbur (22 App. Div. 312); Merritt v. Smith (50 id. 319) and Vanderveer Crossings v. Rapalje (133 id. 203, 205), and we are unable to discover any reason why the judgment should be disturbed.

The judgment appealed from should be affirmed, with costs.

JENKS, P. J., THOMAS, CARR and RICH, JJ., concurred.

Judgment affirmed, with costs.

RICHARD H. PRITCHARD, Appellant, v. JOHN T. PRITCHARD,

Respondent.

Second Department, October 27, 1911.

Contract - damages – breach - agreement to furnish support — failure

to reduce contract to writing.

Where in an action by a father to recover for breach of his son's contract

to support him for life, which had been partly performed, there is no evidence of the damages which plaintiff sustained apart from the fact that, as a consideration for the contract, he furnished $4,200, the purchase price of lands bought by the son, an order setting aside a verdict of $3,500 in plaintiff's favor on the ground that there was no evidence to support the damages found will be affirmed. Such verdict cannot be upheld on the theory that, as defendant had failed

to put the contract in writing as agreed, plaintiff can recover the

consideration, A plaintiff is not damaged by a failure to put in writing a contract which defendant admits he made and as to the details of which there is no

dispute. As the complaint alleged that the breach of contract consisted in certain

wrongful acts of defendant by which plaintiff was deprived, not of the written agreement, but of the benefits thereunder, he is not entitled to a return of his money, but only to the damages resulting from defendant's failure fully to perform the contract.

APPEAL by the plaintiff, Richard H. Pritchard, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 19th day of January, 1911, setting aside the verdict of a jury in favor of the plaintiff for $3,500 and granting a new trial.

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