
    James Lynch, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence — injury to an electric car conductor from the fall of a trolley pole the guide wheel of which had fallen out — the wheelless trolley pole is a defective appliance—assumption of the risk— the amount of a verdict not considered where n& appeal is taken from an order denying a new trial.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff was employed by the defendant street railway company as conductor of an electric trolley car; that on one of the plaintiff’s trips the guide wheel had fallen out of the socket at the top of the trolley pole and that, when the plaintiff notified the defendant’s transfer agent and car starter of this fact,, the starter instructed him to continue his trip and to he careful in going over crossings or around curves that he did not pull the trolley wires down; that while proceeding, pursuant to these instructions, upon a straight piece of track where there was no crossing, the trolley pole became entangled with a wire supporting the trolley wire and the trolley pole was pulled from its socket and fell upon the plaintiff inflicting injuries.
    The plaintiff had been in the employ of the defendant only three months and did not know that the trolley pole was bolted loosely to the top of the car, in order that, if caught in the wire, the pole would pull out rather than break the wire. Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That the wheelless trolley pole constituted an incomplete and defective appliance for the doing of the plaintiff’s work;
    That it could not be said, as matter of law, that the plaintiff assumed the risk of operating the car without the trolley wheel;
    That the defendant, having taken no appeal from the order denying its motion for a new trial, was not in a position to raise the question whether, the amount of the verdict was excessive.
    Appeal .by tbe defendant, The Brooklyn Heights Railroad Company, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of April, 1902, upon the verdict of a jury for $4,200, and also from an order entered in said clerk’s office on the 21st day of April, 1902, denying the defendant’s motion for a dismissal of the complaint.
    
      I. R. Oeland, for the appellant.
    
      James C. Cropsey [F. W. Gatlin with him on the brief], for the respondent.
   "Willard Bartlett, J.:

The plaintiff, a conductor engaged in running an electric trolley car in the service of the defendant, was injured by the fall of the trolley pole in consequence of its upper end becoming in some manner entangled with the wire which furnished the electric current for propulsion. The wheel had fallen out of the socket at the top of the trolley pole, and upon arriving at a point of transfer on the defendant’s road, the plaintiff brought this fact to the attention of the defendant’s transfer agent and starter stationed there, and asked whether he should go on with the car. The starter told him to go down to Fort Hamilton and to be careful, in going over crossings or around curves, that he did not pull the wires down. It seems that the car could be operated without the wheel at the upper extremity of the trolley pole by allowing the fork from which the wheel had fallen to rest against and slide along the electric wire. While proceeding with the chr in this way upon a straight piece of track where there was no. crossing, the pole got entangled with a supporting wire which held up the principal electric wire at the point of accident, and the pole was pulled from its socket at the top of the car and fell upon the plaintiff, inflicting injuries for which the jury have awarded him damages in the sum of $4,200.

There is no doubt that the wheelléss trolley pole with which the plaintiff was directed to go on and operate the car constituted an incomplete and defective appliance for the doing of the plaintiff’s work, and the jury were warranted in inferring that the accident would not have occurred in the absence of this defect. The most serious question presented by the appeal is whether the proof was such as to demand the conclusion, as matter of law, that the plaintiff assumed the risk of operating the car Without the trolley wheel. He had been in the employment of the defendant corporation only three months, and testified that he did not know that the trolley pole was bolted onto the top of the car loosely, so that if it caught in the wire the pole would pull out, rather than pull out the wire. He was not warned by the starter of the existence of any danger that the pole might come down upon him,, but was merely told to be careful not to pull the wire down in going around curves or over crossings. If it appeared without contradiction that the servant knew the character of the appliances, arid the dangers to be incurred by this method of operating them in their incomplete or defective condition, it would have to be held as matter of law that he assumed the risk of exposing himself to such dangers. ( Walters v. Fuller Co., 74 App. Div. 389, 395.) Upon the proof in the present case, however, I think the question whether the plaintiff assumed the risk of such an accident as actually occurred could not be determined as matter of law, but was properly submitted to the jury.

The only other point requiring notice is the claim that tne damages were excessive. The appellant, however, is not in a position to raise this question, as there is no appeal from an order denying’ a motion for a new trial. (See Blohm v. Bamber, 10 N. Y. Supp. 98.)

I think the judgment should be affirmed.

Present — Bartlett, Woodward, Hirsciiberg, Jerks and Hooker, JJ.

Judgment unanimously affirmed, with costs  