
    Nellie Sisco, as Administratrix, etc., Resp’t, v. The Lehigh and Hudson River Railway Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 12, 1895.)
    
    1. Master and servant—Appliances.
    The master does not undertake with the servant that he will use the very best appliances, nor is he called upon to discard machinery, adopted by him in his business, reasonably suited therefor, though there may be other machinery which is safer.
    2. Same.
    Still less is he to be cast in damages for error of judgment in selecting one method of prosecuting his business, or one kind of machinery or appliance, on pr.oof that another method or appliance is better or safer, when both methods or kinds of appliances are in common use.
    3. Same—Risk.
    The servant takes the risk of all constructions necessary and reasonably adapted to the business of the master.
    4. Same—Burden.
    The burden is upon him to show that the appliance, concededly useful in the business, was improperly constructed or located. Proof that it is dangerous is not sufficient.
    Appeal from judgment of the general term of the supreme court in the second judicial department entered upon an order, which affirmed a judgment in favor of .plaintiff and also affirmed an order denying a motion for.a new trial.
    
      Isaac H. Maynard, for app’lt; John W. Lyon, for resp’t.
    
      
      Reversing 59 St. Rep. 162.
    
   Andrews, Ch. J.

The original plaintiff, Eugene Sisco, on the 18th day of April, 1890, in the performance of his duty as brakeman on a moving freight train of the defendant near Monroe station, was climbing up a ladder on the outside of a box car to set a brake, and while on the ladder his head came into collision with the stationary arm of a mail crane, which had been erected by the defendant at that point March 31, 1890, pursuant to the directions of the United States mail authorities. He was seriously injured and brought this action in his lifetime against the defendant to recover damages for the injury, and in his complaint, among other-things, he specified as a ground of liability the want of proper care on the part of the defendant in maintaining the obstruction by which he was inj ured in “ such close proximity to its said railroad.” The defendant put the allegations of the complaint in issue, and the case was tried before the jury, who award-ed $8,000 damages. The general term affirmed the judgment entered on the verdict, and'from the judgment of affirmance this appeal is taken. The original plaintiff has. died since the appeal, and his administratrix has been substituted as plaintiff in the action. The trial judge, upon the issue of the defendant’s negligence, submitted to the jury two questions : First, whether it was negligent in placing the mail crane too near the side track of the railroad, or, second, in failing to give reasonable warning to its employees of its presence, so that they .might guard against the danger, and instructed them in substance that if they fou nd against the defendant on either of these questions the plaintiff, in the absence of contributory negligence, would be entitled to a verdict. It is urged on the part of the appellant that the court erred in submitting to the jury the question whether the defendant was negligent in putting the mail crane so close to the railroad. If this point is well taken it will be unnecessary to consider the question whether negligence could be imputed to the defendant by reason of its failure to notify its employee of the erection of the crane, it having been erected only a short time before the injury in question. The jury found a general verdict, and as it may have proceeded exclusively upon the ground of a negligent location of the crane, if that question ought not to have gone to the jury, the exception to its submission requires a reversal of the judgment.

The mail crane is an appliance to facilitate the taking into a mail car of mail bags when the car is in motion. The defendant erected two on the line of its railroad in 1886, which have been in use since that time, identical in construction, and in relative location to the track, as the one in question. The structure consists of an upright post eleven feet in height above the ground, and standing seven feet six inches from the nearest rail, with a movable arm in the middle and a stationary arm at the top, three feet six inches long, extending towards the track. When a car is passing there is a space of about twelve inches between the end of the arms and the side of the car. The method of operation is to suspend the mail bag between the upper and lower arms. In the mail car is a lever or arm having a sweep (as near as can be collected from the diagram) of a little more than three feet, which the mail1 agent puts out when approaching a mail crane, and it strikes the mail pouch suspended on the crane and draws it into the car. This device may be operated when a train is moving at great speed. Evidence was given on the part of the plaintiff that on the Erie, New York Central and some other roads mail cranes were used, constructed with a movable arm at the top, which, when not kept extended by the weight of the mail bag, rose or fell autihomatic ally. On the part of the defendant it was shown that mal cranes-like those used by the defendant were in use on the Union Pacific and other extensive lines of railroad, and the master mechanic of the defendant testified, without contradiction, there being no othes evidence on the point, that mail cranes with the stationary armr were preferable to. those with the movable arms, on the ground that the former permitted a greater space between the end of the arm and the side of the car than those of the other construction. There was no evidence that the crane in question was placed nearer the track than cranes upon other roads, nor that it was practicable to place a crane at a greater distance than was the one in question or to construct it with a shorter arm and have it answer the purpose in view. There was affirmative evidence as to the location of cranes on other roads, and in all the cases referred to it was shown that they were located no further from the track than the cranes erected by the defendant, and that the space between the end of the arm and the side of the passing car was no greater. It was shown that in constructing the cranes the defendant adopted plans recommended by the 11 Railroad Gazette,” diagrams of which were introduced in evidence.

Upon the state of the proof we think there was no evidence authorizing the submission to the jury of the question of negligence of the defendant in the location of the cranes. The court eliminated the point whether the defendant should have adopted the crane with the movable arms, and very properly. The employer does not undertake with the employee that he will use the very best appliances, nor is he called upon to discard machinery adopted by him in his business reasonably suited therefor, although there may be other machinery that may be safer. It is bound to the exercise of reasonable care in providing machinery and appliances, in view of all the circumstances. Still less is the master to be cast in damages for error of judgment in selecting one method of prosecuting his business, or one kind of machinery or appliance, on proof that another method or appliance is better or safer when both method or both kinds of appliances are in common use. Frace v. N. Y., L. E. & W. R. R. Co., 143 N. Y. 182 ; 62 St. Rep. 166 ; Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11; 58 St. Rep. 431. It was not found, nor was there any evidence upon which a jury could infer, that the crane in question could be placed any further from the track than it was and perform the function for which it was designed. The plaintiff was bound to show a state of facts indicating negligent construction or location, to raise a question for the jury upon this point. It was not sufficient for him to show an injury, or that operating the device involved danger to the brakemen. He took the risk of all constructions necessary and reasonably adapted to the business of the railroad. The burden was upon him to show that the appliance, concededly useful in the business of the defehdant, was improperly constructed or located, and this he wholly failed to do: Proof that it was dangerous was not enough. He was bound to go further and show that the defendant might, by the use of reasonable care, have accomplished its purpose and at the same time protected its employees from the danger.

We think the judgment cannot be sustained without establishing a principle which will subject an employer to liability to his employes from the mere happening of an injury while engaged in a dangerous service.

The judgment should be reversed and a new trial ordered.

All concur.

Judgment reversed.  