
    Loren Doing, as Administrator of Robert P. Hare, Deceased, App'lt, v. New York, Ontario & Western Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 8, 1893.)
    
    1. Master and servant—Rules.
    A company is not negligent in not making a rule to govern the conduct oí employes in shifting cars, where there is no evidence that other companies had rules on the subject, or that rules are necessary or practicable in such case.
    3. Same—Appliances.
    
    When injury to an employe results from a defect in the implements, it must be shown, in order to render the master liable, that he knew of the defect, or omitted the exercise of proper care to discover it.
    Appeal from a judgment dismissing the complaint with costs.
    
      W. F. Jenlcs and George W. Bay, for app’lt; Howard D. Newton, for resp’t.
   Martin, J.

This action was for negligence. The plaintiff’s intestate was in the employ of the defendant as a car repairer. On March 3, 1890, he wag engaged in his work underneath a car that was blocked up for repairs inside of the defendant’s repair shop in the village of Norwich. The shop was about 200 feet long and 50 feet wide. There were three doors in the south end and no window. Three tracks were laid into this shop from the south, which connected with a track running to and connecting witli the main tracks in the defendant’s yard. That day, while attempting to place a car, partially loaded, opposite a pile of scrap iron by the side of one of the tracks leading into the shop, other employes of the defendant drew the car by an engine to a switch about 800 feet from the shop, and then “shunted” or “kicked” the car onto the track from that point It passed over the distance between the switch and shop, and ran through the doors, which were closed, into the shop, and fatally injured the plaintiff’s intestate. The plaintiff claims that the defendant was negligent (1) in not furnishing his intestate a safe place in which to do his work; (2) in not making and promulgating proper and necessary rules for the government of its employees while managing and shifting cars in its yard; (3) in not keeping the brake upon the car which caused the injury in proper repair.

A careful examination of the evidence fails to disclose any proof which even tended to show that the place where the intestate was engaged in his work was not a safe and proper place for the work in which he was engaged. Hence the court could not have properly submitted that question to the jury.

The next question is whether the defendant was guilty of negligence in not making or promulgating proper and necessary rules for the government of its employes when managing and shifting cars in its yard. We think the evidence failed to establish the fact that no such rule was made and promulgated. It was quite to the contrary, and insufficient to justify the jury in so finding. But, if the evidence had been sufficient to sustain such a finding, we should still be of the opinion that it was insufficient to justify the court in submitting the question of the defendant’s negligence to the jury on that ground. In this case no evidence was given that any rule was in use by other corporations engaged in business of similar character, or by experts or other witnesses to show that any rule was necessary or practicable in such a case; nor was the evidence such as to make the necessity and propriety of making and promulgating the rule contended for so obvious as to make the question one of common experience and knowledge. In Berrigan v. N. Y., L. E. & W. Railroad Co., 131 N. Y. 582 ; 42 St. Rep. 858; in discussing a similar question, it was said :

“ The defendant was only bound to use ordinary care in formulating rules, and it is not reasonable to proceed upon the assumption that every injury to an employe can be guarded against and prevented by making such rules. It was the duty of the defendant to anticipate and guard against, by rules or otherwise, only such accidents and casualities as might reasonably be foreseen by 'the managers of the corporation, exercising ordinary prudence and care. * * * In the absence of some proof on the part of the plaintiff that such a rule was in operation .by other roads, or of persons possessing peculiar skill and experience in the management and operation of railroads to the effect that such a rule was necessary or practicable under the circumstances, or unless the necessity and propriety of making and promulgating such a rule was so obvious as to make the question one of common experience and knowledge, the court is not warranted in submitting such a question to the jury.”

See also Morgan v. Hudson River Ore and Iron Co., 133 N. Y. 666 ; 45 St. Rep. 112 ; Larow v. N. Y., L. E. & W. R. R. Co., 61 Hun, 11 ; 40 St. Rep. 26.

Was the evidence such as to require the court to submit the question of the defendant’s negligence to the jury on the ground that the brake upon the car was out of repair? The evidence bearing upon that question was very slight, but perhaps sufficient to have justified the court in submitting the question to the jury, if there was any proof that it had been out of repair a sufficient length of time to justify the jury in finding that the defendant knew of its condition, or was negligent in not ascertaining it. An employer does not undertake absolutely, with his employes, for the sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care; and, when injury to an employe results from a defect in the implements, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. Devlin v. Smith, 89 N. Y. 470 ; Wright v. N. Y. C. R. R. Co., 25 N. Y. 562 ; Chapman v. Erie R. R. Co., 55 N. Y. 579 ; Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 856 ; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245 ; Kelly v. N. Y & Sea B. R. R. Co., 109 N. Y. 44 ; 14 St. Rep. 36. We think the evidence" was insufficient to justify the court in submitting to the jury the question of the defendant’s actual or constructive knowledge of the defect in the brake. It is manifest, we think, that the injury to the plaintiff’s intestate was caused by the negligence of his coemployes, and that the court properly nonsuited the plaintiff.

Judgment affirmed, with costs.

All concur.  