
    TOMS v. BUFFALO CREEK R. CO.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Master and Servant—Negligence—Defective Appliances.
    In an action against a railroad company, by an employe, for personal injuries received while uncoupling cars, the complaint alleged that the locomotive was defective, and that by reason of such defect it started, and moved the train, while plaintiff was between the cars, thus causing the injuries complained of. Plaintiff’s evidence showed that the train was standing still when he went between the cars to uncouple them. The alleged defect was that the throttle valve would sometimes “cock,” so that it could not be closed, whereby the engineer was not able to stop the locomotive. It appeared, however, without contradiction, that when the locomotive was standing still the valve was necessarily in proper position, and that the “cocking” could occur only when the valve had been opened for the purpose of moving the locomotive. It also appeared that the engine had been put in good repair, throughout, two months before the accident, and there was evidence that valves like the one in question were not liable to “cock” when in good order. Helé, that the evidence did not show that the accident was caused by a defective valve, and a verdict should have been directed for defendant.
    Case certified from superior court of Buffalo.
    Action by Joseph P. Toms against the Buffalo Creek Bailroad Company. From a judgment recovered in a superior court of Buffalo on the verdict of a jury in favor of plaintiff, and from an order made by that court, denying a motion for a new trial on the court’s minutes, defendant appealed. Two of the judges of that court being disqualified to hear the appeal, it was certified into this court.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    A. D. Scott, for appellant.
    Porter Horton, for respondent.
   LEWIS, J.

The plaintiff recovered a verdict in the month of August, 1882, against the defendant, for injuries sustained by him, alleged to have been caused by the negligence of the defendant. The defendant is a steam railroad in the city of Buffalo. The plaintiff, at the time of receiving his injuries, was in its employ, as a, switchman. His complaint alleges that it was part of his duty, as such switchman, to go in between cars, for the purpose of coupling and uncoupling them; that there was, on the day he was injured, a train composed of a locomotive and twelve cars, belonging to the defendant, and under its management and control, and that he was directed by the defendant to go in between two of the cars for the purpose of uncoupling them; that after the locomotive and cars had come to a stop he went in, as directed, and that, without any notice or warning to him, and without any signal being given, and without any one causing it so to do, the locomotive started, and pushed the train so as to bring the cars plaintiff was attempting to uncouple together in such a manner that his arm was caught between the cars and crushed; that the machinery of the locomotive was at that time in such a defective and insecure condition .that the engine was liable to become unmanageable, and that because of such defects it, on this occasion, started, and moved the train, and caused the injuries; and that its defective, unsafe, and insecure condition was, and had for a long time prior thereto been, known to the defendant. The alleged defect was in a valve, the office of which was to regulate the flow of steam used in propelling the locomotive. The plaintiff’s evidence tended to show that on some occasions previous to the time of the accident this valve had failed to obey the lever of the engine; that when it was lifted by the steam from its seat it had on one or more occasions failed to drop back into its proper place, and had tilted over upon its side, and thereby permitted the steam to continue to flow, so that the engineer was not able to stop the locomotive. This falling over of the valve was called by the witnesses “cocking of the valve.” The mechanism and operation of this valve, and the functions it was intended to perform, were very minutely and particularly described by the witnesses. From the view we have taken of the case, we do not deem it necessary or profitable to more particularly describe the valve, or its operation. All the witnesses testified that when the engine was standing still the valve must necessarily be in its proper position, and properly perform its functions, and prevent the flow of steam. They all agreed that the act of cocking could only ■occur when the engine was being propelled by steam. As stated, the complaint alleged that the train was standing still when plaintiff attempted to uncouple the cars. Plaintiff testified:

“William Murray, the assistant, told me to cut off the two cars. I went in and pulled the pin. It was pretty hard work. It was one of those pins you could not get out altogether, and I gave him the signal to go ahead, and shove the car on the side track, and he gave the engine steam. The pin dropped in, and a couple of the cars went together again. I could not pull the pin until he stopped. I gave him the signal to stop, and he stopped, and I went in. Upon working the pin the cars came ahead, and caught me over the elbow. ■* =:= * When I went in between the cars the second time the train had stopped, and the timbers of the cars that I went between were three or four inches apart. There was slack enough to pull the pin, if it had not stuck. There was no signal given by me, nor by any other person, to my knowledge, to start the train. When I went in between the cars they had stopped. I couldn’t see any signal when I was working at the pin, but the cars came upon me. When working at this pin my elbow was between the timbers,-—what they call the ‘deadwood.’ The deadwood is a piece of wood that saves the drawheads from coming together. I was shaking the pin, and trying to loosen it, and my arm came in that position.”

William Briggs, a witness called by the plaintiff, testified:

“I saw the accident to Toms. I was right behind, taking the numbers of the cars, and he was ahead of me. * * * I know, when he went in between the cars, I was about thirty feet away from him, and the train was then ■standing still. I think it was about half a minute when ho went in before I heard him holler, and the cars were then just moving. I saw the cars moving, and gave the signal to stop them. They moved about thirty feet after I heard him holler. I also gave the signal for the train to stop before Toms was hurt,—about a couple of minutes before. There was nobody but myself and Toms who could give any signals to the engineer for the movement •of the train. The cars were stopped there to get their numbers, and to get them receipted. The cars had been stopped a couple of minutes when the accident took place. The cars started slow and easy.”

The evidence of these witnesses was uncontradicted.

George L. Geyer.was the engineer in charge of the engine at the time of the accident. His testimony tended somewhat to confuse the case, but, if examined carefully, will be found not to contradict the fact testified to by the plaintiff and Briggs,—that the train was standing still when the plaintiff went in between the cars. •Geyer testified:

“When Toms was hurt I was on the engine. I received the signal to stop from Toms or Briggs. The signal indicated that I should stop quick. I shur ■off the steam, and reversed the engine. There was a slight grade at that point, in the direction that the engine was running. When I pulled up I was on a slight grade. When I reversed the lever it had a tendency to check the train, and the piston began to pump air back into the steam pipe. I shut •off the steam at this time. We were running about six or seven miles an hour. The next thing I did was to throw the reverse lever ahead. After I had thrown the reverse lever back, to shut off the steam, the engine slowed ■down. I head the valve drop back on its seat about three distinct times. This ■indicated that if I was not careful the valve was liable to cock. * * * It was about half a minute or forty-five seconds after I received a signal to stop before I heard the valve working up and down. The train had not then .come to a standstill, but had slowed up about half. We were then •running at the rate of three or four miles an hour. When I heard the valve rise in the manner I have indicated, I opened the cylinder cocks, and threw the reverse lever ahead, thereby taking off the pressure, and preventing ithe air from running into the steam pipe. When I did this the engine moved ahead. I next reversed my engine back. I did not hear anything then, and the train came to a standstill. I looked out of the cab for signals, and did not hear anything of Toms, but saw him come out from between the cars on the side of the track, having hold of bis arm. I then came down from the engine, and went up to where he was. I found that his arm was crushed.”

Greyer testified that he believed when he let on the steam that the valve was about to cock, and that that was the reason for giving the engine the additional steam. It will be observed that the engineer testifies that when his train was running at the rate •of three or four miles an hour, on a down grade, he heard the noise of the valve rising and falling, and, fearing that it was about to •cock, threw the reverse lever ahead, which caused the engine to move ahead, and that the train only moved thereafter about 25 or 30 feet before it came to a stop. It is quite improbable that such a train, under such circumstances, could be stopped in so short a distance. The account given by the plaintiff and Briggs is much more probable. They testified that the train was standing still, that the engine started and pushed the train about 30 feet before it was again stopped, and that the plaintiff thereupon came out with his arm crushed. While the account of the occurrence, as related by the engineer, might lead to the inference that he looked out of his cab immediately after he stopped his train, and saw the plaintiff come out, holding his arm, he does not, however, testify how soon he looked out of his cab after his train stopped. His evidence is not necessarily contradictory, nor inconsistent with the testimony of the plaintiff and Briggs. Plaintiff’s version of the transaction is undoubtedly the correct one. It coincides with his claim, as stated in his complaint, and he should not have been permitted, upon the trial, to assume any other position.

There is but one rational conclusion to be drawn from the evidence as to the cause of the accident, and that is that the engineer, from some cause, which he fails to explain, while the engine and train were standing still, let on the steam, and pushed the cars together, and thereby caused the injury, and that the accident was caused by his, and not the company’s, negligence. As we have seen, the valve, when the' engine was at rest, could not be lifted from its seat and tilted over. When the engine was in that , condition the valve must necessarily and inevitably perform its proper functions, in preventing the flow of steam. There is no reasonable ground for the contention that the plaintiff was entitled to recover if his version of the transaction was the correct one; and yet the learned court refused to charge, upon request of the defendant, “that if the jury find that the train was at a standstill when the plaintiff went in between the cars, at the time of the accident, and took hold of the coupling pin, to uncouple the cars, there can be no recovery in this action.” To such refusal, defendant’s counsel duly excepted. The valve in question was known as the “Winans Valve.” It was the kind of valve in, use on all the defendant’s locomotives. The plaintiff called engineers and mechanics who testified that they were familiar with the construction and parts of locomotives, but they had never known the Winans valve to be used on any other engines hut those of the defendant. They described valves used upon other engines; and one of the witnesses, a machinist, after examining a diagram of the valve known as the “Balance Valve,” was allowed, against the defendant’s objection, to give his opinion of the advantages of that valve over the Winans valve, and stated “that the former is always under the control of the engineer, and cannot get out of order. There is no danger of the balance valve cocking.’-’ He further stated: “I could not say how it is in this regard about the Winans valve. I never saw one like it '■before.” A number of plaintiff’s witnesses testified that if the Winans valve were kept in order there would be no liability of its sticking or cocking. This evidence was not contradicted. Witnesses testified that any valve, if not kept in good condition, might fail to work properly. John G-. Murray, a witness sworn for the plaintiff, after testifying that he had been an engineer, was asked by the plaintiff, “Do you know of other throttle valves in use upon engines, where this cocking and lifting can be prevented, for the purpose of supplying steam?” Defendant’s counsel objected to the question as incompetent, immaterial, and improper. The court, in overruling the objection, stated, “I think he has a right to show that this is not the best device that could be used.” The learned court, in denying the motion for a direction of a verdict for the defendant, stated, “I think there is some proof of the defective construction of this valve.” The undisputed evidence was that this engine was taken to the repair shops in the spring before the accident, and was put in good repair throughout. It went into service again on the 16th of June, two months before the accident occurred. The valve worked well after these repairs were made, and was not known to cock thereafter. There was nothing in the case justifying the jury in finding that the valve was out of repair at the time of the accident. The verdict cannot be accounted for unless upon the theory that the jury was misled by the manner in which the case was submitted to them. While considering the case they must have wandered off into the field of speculation as to the merits of the Winans valve, and concluded that perhaps it was, after all, faulty in its construction, notwithstanding that every witness who testified about it said that if it was in good order it would work well. We do not see any ground upon which the plaintiff was entitled to recover. If plaintiff went in between the cars, and attempted to uncouple them, when they were in motion, it might well be doubted if he was not guilty of negligence that would prevent his recovery. But, as before stated, we do not think there is any evidence that the cars were in motion when he attempted to uncouple them, and therefore he was not shown to be guilty of negligence contributing to his injuries. We put our decision upon the ground that the plaintiff failed to prove any negligence on the part of the defendant. The defendant’s motion for a direction of a verdict should have been granted. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.  