Kelly v. Central Railroad of New Jersey

Full title: THOMAS KELLY, Respondent, v . CENTRAL RAILROAD OF NEW JERSEY, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 22, 1917

178 App. Div. 685 (N.Y. App. Div. 1917)

165 N.Y.S. 862

Opinion

June 22, 1917.

John G. Milburn, Jr. [ Thomas S. Doughty with him on the brief], for the appellant.

Henry M. Dater [ Jay S. Jones, Edward J. Fanning and L. Victor Fleckles with him on the brief], for the respondent.

Present — JENKS, P.J., MILLS, RICH, PUTNAM and BLACKMAR, JJ.

JENKS, P.J.:

The action is for negligence. The defendant, appellant, does not question the propriety or the amount of the verdict, but contends that the plaintiff should have been dismissed perforce of a release executed by him to his employer, the American Express Company, but available to the defendant. KELBY, J., who tried the case with a jury, properly directed that the issue of the release should be disposed of first. Thereupon, and when the defendant conceded that there was no consideration for the release save the said employment of the plaintiff, the court, under exception, held that the release was void as against public policy.

The duty of plaintiff as such employee required him as a porter to load, to unload cars at railway stations, and to use the platform of the defendant's station. While thus about his master's business he was run down and was injured by a freight truck, dragged by a servant of the defendant. The release purports to hold harmless the plaintiff's employer or any transportation company (of which concededly the defendant is one) by whom or by whose servant the plaintiff might be injured. We are of opinion that the ruling of the court was right, under the principle declared in Johnston v. Fargo ( 184 N.Y. 379). (See, too, Fitzwater v. Warren, 206 N.Y. 358.) If the release is void as against public policy, that vice exists when it is invoked by one who must assert that right through a party thereto and relies upon the consideration that moved from the latter. The learned and able counsel for the appellant lays stress upon Baltimore Ohio, etc., Railway v. Voigt ( 176 U.S. 498). That case is considered but not followed in Johnston's Case ( supra).

The judgment and order should be affirmed, with costs.

JENKS, P.J.:

Judgment and order unanimously affirmed, with costs.