
    Owen Sweeney, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.
    
      (New York Superior Court, General Term
    
    
      Filed June 27, 1890.)
    
    Negligence — Master and servant.
    In an action by an employee to recover for injuries the mere fact that the proximate cause of such injuries was the breaking of a coupling link does not authorize the court to direct a verdict for plaintiff on the ground that defendant was guilty of negligence in not furnishing a safe and suffi-. cient link, as the jury might reasonably find that a fellow servant had negligently used the link in question although defendant had furnished other safe ones for use.
    Appeal from judgment in favor of the plaintiff entered upon, the verdict of a j ury directed by the court and from order denying defendant’s motion for a new trial
    Action to recover for injuries caused, as alleged, by defendant's, negligence. Plaintiff was an employee of defendant.
    
      Page & Taft, for app’lt; Thomas P. WicJces, for resp’t.
   Freedman, J.

Assuming that the trial judge was right in refusing to dismiss the complaint and in holding that the plaintiff waá'not guilty of contributory negligence and that the proximate cause of plaintiff’s injury was the breaking of the coupling link between the tender and the car next to it of defendant’s train, it does not follow that the breaking of the said coupling link constituted negligence per se in the defendant. From the evidence on this point, although uncontradicted, reasonable minds may-draw different conclusions. In a certain aspect of the case the jury might have reached the conclusion that a fellow servant of the plaintiff negligently used the said coupling link notwithstanding its insufficiency and defect were apparent on a bare inspection and although the defendant had provided quite a number of others which were perfectly safe and sufficient and from which a selection should have been made by such fellow servant. The question of defendant’s negligence was, therefore, one of fact to-be determined by the jury and it was error in law to withdraw it from the consideration of the jury and to hold that defendant had been guilty of negligence as matter of law in not having provided a safe and sufficient coupling link, and to instruct the jury that the only question to be determined by them was. the question of damages.

As the error specified necessitated a new trial, it is not necessary to discuss the other questions in the case.

ffhe judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

Tritax, J., concurs.  