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and impose no duty on the company to give signals for the purpose of warning employes that the train is approaching an overhead bridge. Louisville & N. R. Co. v. Hall (Ala.), 39 Am. & Eng. R. Cas. 298.
Same--Contributory Negligence of Employes.—In some cases, the decision of the court that the railroad company is not liable for injuries to employes who had knowledge of the dangerous.character of the bridge, has been placed upon the ground that such employes must have been guilty of negligence contributing to their injuries." See Stirk v. Central R. & B. Co., 79 Ga. 495; Riley v Connecticut Riv. R. Co. (Mass.), 15 Am. & Eng. R. Cas. 181; Brossman v. Lehigh Val. R. Co., 113 Pa. St. 491 : Stoneback v. Thomas Iron Co. (Pa.), 2 Cent. Rep. 604; Clark's Adm'r v. Richmond & D. R. Co. (Va.), 18 Am. & Eng. R. Cas. 78. And this is especially the case when the employe has been specially warned when approaching the bridge. Devitt v. Pacific R. Co., 50 Mo. 302.
Same-Notice to Company of Dangerous Condition of Bridge-Evidence. -Evidence that other persons were injured in the same manner as the plaintiff by the same bridge, tends to show notice to the company of the dangerous condition of the bridge, and is admissible. Louisville, N. A. & C. R. Co. v. Wright (Ind.), 33 Am. & Eng. R. Cas. 370. But testimony that a dead body was seen lying near the bridge is not admissible in the absence of evidence to show that such person had been killed by being carried against the bridge, or by being knocked from the top of a train. Louisville & N. R. Co. v. Hall (Ala.), 39 Am. & Eng. R. Cas. 298. Evidence of a competent expert as to the merits or demerits of whippingstraps as cautionary signals, and whether or not they were generally in use on roads regarded as well regulated, is admissible, but such witness cannot give his opinion as to the management of the particular railroad in question. Louisville & N. R. Co. v. Hall (Ala.), 39 Am. & Eng. R. Cas. 298. But compare Hooper v. Columbia & G. R. Co. (S. Car.), 28 Am. & Eng. R. Cas. 433. Evidence that bridges on other railroads are too low for brakemen standing on the top of ordinary box cars to pass under them in safety, is not admissible. Louisville N. A. & C. R. Co., v. Wright (Ind.), 33 Am. & Eng. R. Cas. 370.
Same-Exemplary Damages. In the absence of evidence tending to prove gross, wanton or reckless negligence in the construction of the bridge, no exemplary damages are recoverable. Louisville & N. R. Co. v. Hall (Ala.), 39 Am. & Eng. Ř. Cas. 298.
Same-Liability When Bridge Constructed by Person Other than Railroad Company.-Ifa bridge over a railroad is built in a safe and substantial manner and at a height above the tracks sufficient at the time it was built to admit of free use of the road, the mere fact that the bridge became dangerous because higher cars were brought into use by the railroad company so that a brakeman required by his duties to be on the top of a car could not pass under the bridge without in some instances lying down, will not render those maintaining the bridge liable to damages for the death of a brakeman who was knocked from the car and killed, if they had no notice of the change in the height of the cars. Stoneback v. Thomas Iron Co. (Pa.), 2 Cent. Rep. 604.
New YORK CENTRAL & HUDSON RIVER R. Co. (New York Court of Appeals, Second Division, October 22, 1889.)
Master and Servant-Inspection of Cars of Other Companies.—A railroad company is bound to inspect the cars of another company, used upon its road just as it would inspect its own cars, and it owes this duty as master, and is responsible for injuries to servants caused by such defects as would be discovered by ordinary inspection.
Same-Coupling-Defective Draw-Bar-Duty of Employer.– Where the bumper or draw-bar of a car belonging to another company is lower than it ought to be, in consequence of the staple or strap in which it plays being broken on one side, the master is responsible for an accident caused by failure to discover and remedy such defect, and he has not fulfilled his duty by furnishing for the use of his employes, crooked links which can be used in coupling together cars upon which the bumpers are of different heights.
Same-Coupling-Risks Assumed by Brakemen.—The danger of injury arising from the engineer backing the train upon a stationary car with force so great as to make the dead-woods meet, is a risk of employment assumed by a brakeman, but he did not assume any risk where the accident was caused by the defective bumper of the moving car, which hung lower * han it ought, passing under the bumper of the stationary car, and thus permitting the dead-woods to come together.
Same-Coupling-Defective Draw.Bar--Contributory Negligence.—Where it appears that a brakeman only saw that the bumper of the moving car was lower than the bumper of a stationary car when they were four or five feet apart, and that he thought that the coupling could be made with the straight link in the draw-bar, the question whether he was guilty of contributory negligence in attempting to so make the coupling instead of obtaining and using a crooked link, is for the jury. FOLLETT, C. J., and POTTER, J., dissent.
APPEAL from a judgment of the general term of the third judicial department, which affirmed a judgment entered upon an order at the circuit dismissing the plaintiff's complaint. This action was brought to recover damages for injuries received by the plaintiff, a brakeman in the employ of the defendant, while engaged in coupling cars. It appeared from the testimony that on the morning of the 17th of October, 1882, the plaintiff and other employes of the defendant were directed to go from Albany to Fishkill, and take charge of a circus train which was to come upon defendant's road from the New England road. The circus train reached Fishkill about three o'clock in the afternoon, and was switched upon a side track north of the depot. In the evening, between 7 and 8 o'clock, the plaintiff was directed by the conductor to couple some of the cars of the circus train to some stationary cars further north on the same track, and this he proceeded to do. He stood on the east side of the track as the cars were moving north at a slow gait. It was dark, and plaintiff had a lantern. When the cars to be coupled were within a few feet of each other, he stepped between them for the purpose of inserting the link which was in the bumper or drawhead of the stationary car. When the cars were three or four feet apart, he discovered that the bumper of the moving car was lower than the bumper of the stationary car. He testified that he thought, by raising the link, it would enter the bumper of the stationary car. He took hold of the link with his left hand to raise it up, but found it would not enter the bumper of the stationary car. The bumper of the moving car passed under the bumper of the stationary car, and in attempting to withdraw his hand it was caught between the dead-woods and severely crushed. The dead-woods were about eight inches on each side of the bumpers. Their purpose was to prevent the cars coming together, and thus afford protection to a person standing between them. The bumper on the moving car was not broken, but hung lower than the one on the stationary car, and lower than it was intended to hang, for the reason that the staple or strap which surrounded it, and in which it played, was broken on one side. It is customary, in coupling cars of which the bumpers are of different heights, to use a crooked link, and such links are supplied by the company, and were in the caboose which plaintiff and his fellows took with them from Albany to Fishkill. The link in the bumper at the time of the accident was a straight one. After the accident a crooked link was used, and the coupling was made, and the car was thus used while on defendant's road. The bumpers are backed by strong springs, and it frequently happens that, when the cars meet with considerable force, the bumpers are pressed in upon the springs, and the dead-woods come together; but when the cars approach each other at a slow, or, as the witnesses, term it, “ordinary,” speed, the bumpers receive the shock, and a space is left between the dead-woods of from two to eight inches. It further appeared that in making the coupling the plaintiff's hand would necessarily be between the dead-woods of the two cars. Plaintiff appeals.
Amasa 7. Parker for appellant.
BROWN, J.-It was decided in Gottlieb v. New York, L. E. & W. R. Co., 100 N. Y. 462, 24 Am. & Eng. R. Cas. 421, that a railroad company is bound to inspect the cars of an
other company used upon its road, just as it would inspect its own cars; that it owes this duty as master, and 'is responsible for the consequences of such defects Inspection of as would be disclosed or discovered by ordinary inspection; that when cars come to it from another road which have defects, visible or discernible by ordinary examination, it must either remedy such defects, or refuse to take them. This duty of examining foreign cars must obviously be performed before such cars are placed in trains upon the defendant's road, or furnished to its employes, for transportation. When so furnished, the employes whose duty it is to manage the trains have a right to assume that, so far as ordinary care can accomplish it, the cars are equipped with safe and suitable appliances for the discharge of their duty, and that they are not to be exposed to risk or danger through the negligence of their employer. The defect complained of in this case was obvious and discernible to the most ordinary inspection, and could have been easily remedied. It is argued by the defendant that it had fulfilled its duty when it had furnished for the use of its employes plome of em. crooked links, which could be used in coupling together cars upon which the bumpers were of different heights. We do not think that in this case that fulfilled the measure of defendant's obligation. It could not be so held, unless it was the duty of the plaintiff to examine and inspect the cars to ascertain whether the coupling appliances were in proper condition. The duty of examination, like the duty of furnishing proper machinery and appliances, in the first instance rests upon the master. Fuller v. Jewett, 80 N. Y. 46; Gottlieb v. New York, L. E. & W.R. Co., supra. And the degree of vigilance required from a railroad corporation in this respect is measured by the danger to be apprehended and avoided. Ellis v. New York, L. E. & W. R. Co., 95 N. Y. 546, 17 Am. & Eng. R. Cas. 641 ; Salters v. Delaware, etc., Can. Co., 3 Hun (N. Y.), 338. While, in the case of corporations, the performance of this duty must be committed to employes, there is no presumption that it rests upon any particular individual. It is not within the apparent scope of a brakeman's duty, and does not necessarily rest upon him. In the absence of all evidence upon the subject, we cannot, there. fore, presume that the examination and inspection of the particular cars in question had been committed to the plaintiff ; and, unless it had, he had a right to assume that the master's duty had been performed by those having it in charge, and that the coupling appliances upon the cars were adequate to the performance of his work without extraordinary risk or danger.
It is further contended by defendant that the accident was one of the ordinary risks of plaintiff's employment, and was
liable to happen in coupling any cars. Some eviRisks assumed dence to which our attention is called, given by by brakemen
plaintiff on his cross-examination, standing alone, - Defective draw-bars.. would give some color to this claim, but, read in
connection with the other testimony, shows that it is only when the cars are propelled against each other with great force that the dead-woods are liable to come together, and thus endanger the brakeman making the coupling. The evidence is that when the moving cars are backed upon the stationary car at a slow rate of speed, or at a speed ordinarily used in making couplings, the bumpers or draw-heads will take the whole shock, and the dead-woods will not meet, but there will be a space between them of from two to eight inches. Doubtless, the danger of injury arising from the engineer's backing the train upon the stationary car with great force is a risk which the brakeman must assume, and for which the corporation would not be responsible; but that was not the risk to which the plaintiff was exposed. The evidence is that the train was backing up slowly, and at a rate of speed that would not have brought the dead-woods in contact if the bumper had been in order. Because the bumper of the moving car was defective, and hung lower than it should have done, it passed under the bumper of the stationary car, and permitted the dead-woods to come together. The defective bumper was thus shown to have been the proximate cause of the accident. It was literally the causa causans. Its immediate effect was to permit the dead-woods of the two cars to come together, and the plaintiff was from that cause exposed to a danger not within the ordinary risks of his employment. This result was traceable directly to the defendant's failure to provide the moving car with bumpers in good order; and, unless the proof showed (which it did not) that plaintiff himself was in some way responsible for that condition of the car, the negligence of the defendant was established.
The question as to the plaintiff's contributory negligence was, I think, one of fact for the jury. He testified that, when
the cars were four or five feet apart, he saw that
the bumper of the moving car was lower than the contributory bumper of the stationary car. It does not appear negligence.
that he observed that it would pass under the bumper of the stationary car, or that there was any danger that the dead-woods would come together. On the contrary, he appears to have thought that the coupling could be made with the straight link that was in the draw-head. He had a