
    Louis Bajus, Resp’t, v. Syracuse, etc., Railroad Co., Appl’t.
    
    
      (Court of Appeals,
    
    
      Filed October 6, 1886.)
    
    Hegbigence—Masteb and Seevamt—Raileoads.
    Where an accident happens to an employee of a railway company, which was attributable to the decrease in power of one of the locomotives, it was held that the railway company did not owe it to its employees to furnish engines of any particular power, or to maintain them at that power, but simply such as are reasonably safe and suitable.
    
      Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff directed at circuit.
    Action to recover damages for personal injuries sustained by employee of defendant, on ground that defendant was negligent in allowing defective engine to be used in its business.
    
      Louis Marshall, for app’lt; Mr. Goodelle,. for resp’t.
    
      
       Reversing 34 Hun, 153.
    
   Earl, J.

The plaintiff was, in 1877, the yard-master of the defendant at Syracuse, and as such, it was his duty to superintend and aid in the shifting of cars, and to couple and uncouple cars. The shifting engine at that place, on the day alleged in the complaint, was attached to twelve cars; and, after drawing them a short distance up an ascending grade, it became stalled, and then, under the direction of the plaintiff, the engine was hacked so as to enable him to uncouple some of the cars. For that purpose he went between two cars, while they were moving slowly backward, and his foot caught under a brake beam, and he was dragged along about forty-five feet, when a car-wheel ran over one of his legs, and crushed it so as to make its amputation necessary. This action was brought to recover damages for the injury thus caused, and the claim of the' plaintiff is that the injury was due solely to neglect chargeable to the defendant.

The plaintiff does not complain that the,road-bed, or the cars, or any of the appliances which he was required to use, were insufficient or out of order. His sole complaint is that the engine was out of repair, and insufficient for the use to which it was devoted, and against it he makes these complaints, which I will notice specially : (1) The flues of the engine were foul, and somewhat stopped up. The only effect of this was that steam was generated less rapidly, and the power of the engine was thus diminished. (2) The main valve in the steam-chest leaked, and that diminished the power of the engine by just so much as the steam escaped, and had no other effect. (3) But the more serious defect was that the throttle-valve leaked.

One effect of a leakage of steam through the throttle-valve is that the steam cannot be entirely shut off, and the consequence is that an engine with such a defect may move from its position, when placed at rest, unless blocked. But when the throttle-valve is open, and the engine in motion, there can be no leakage, as all the steam passes through the open valve; and hence this defect does not interfere with the power of the engine. There is no other effect caused by the leaking of the steam through the throttle-valve, which is the only one, so far as I can perceive, which can be claimed to have any bearing here. In the case of such leaking, it is frequently more difficult to throw over the lever, and thus reverse the engine. The claim of the plaintiff is that when his foot was caught, he immediately signalled the engineer to stop, and that, if the throttle-valve had been in order, the engineer could have more readily reversed the engine, and thus have arrested its motion before his leg was crushed. But the difficulty with this claim is that the undisputed facts stand in its way. There is no proof that the engineer saw or heard plaintiff’s signal when he first gave it. The only person who was upon the engine, and saw what took place there, was called as a witness by the plaintiff ; and he testified that when the engineer heard the signal given by the plaintiff he at once threw over the lever, and reversed the engine, and that he did this quickly, and without any difficulty, and thus arrested the motion of the engine, so that thereafter it passed backward only about five feet. The defect in the throttle-valve, therefore, had no relation whatever to this accident, and the plaintiff’s sole reliance for the maintenance of his action must be upon the defective condition of the flues, and of the main steam-valve, the sole consequence of which was the diminished power of the engine.

These defects may have diminished the power of the engine by several horse-power, so that the engine, instead of being, for instance, eighty horse-power, was only seventy. It matters not that this diminished power came from these defects, nor how the engine came to be of only seventy horse-power. The responsibility for the defects is no greater than it would have been if the defendant had furnished a new engine of precisely the same power. The plaintiff was familiar with the capacity and power of the engine, and in no way entrapped or deceived by its use. Suppose, then, the defendant had furnished a new engine of seventy horse power,—precisely the same power which we may assume this had at the time of the accident,—upon what principle could it be said that it would be hable for such an accident ? Can it be laid down as a principle of law that it is bound to furnish to its employees engines suitable and adequate in power to every emergency ?

Who but the employer shall determine how powerful an engine shall be at any place and for any purpose % Suppose at this place the defendant had furnished an engine capable of moving but three cars at a time and running but ten miles an hour, and the plaintiff had known it, could he justly complain of it ? Would such an engine in any legal or proper sense be dangerous ? If an employer should furnish to an employee a horse which from natural weakness or from disease should not have strength for the work on hand, and the employee should in consequence thereof receive some injury, could he hold the employer responsible for his damages ? These inquries need not be pursued. The answer to them is obvious. This was not a dangerous engine, and it did not cause the injury. That was caused by the brake beam accidentally catching plaintiff’s foot, and the engine simply failed to rescue him from the danger in which he was placed. It was an accident which the defendant had no reason to anticipate, and hence it was not bound to have an engine there adequate to avert its consequences. It cannot be charged with negligence in not foreseeing that such an accident might occur, and that then the engine would lack power to stop suddenly enough to ward off injury. A more powerful engine could start a train more suddenly, and for the same reason could stop one more suddenly.

It would impose upon every railroad company very embarrassing, onerous and unjust responsibilities, if in the case of accidents with moving trains it was to be a subject of_ inquiry before a jury whether the particular accident might not have been avoided with an engine of greater or less power.

If this engine drawing a train upon a railroad had in consequence of its imperfect condition become stalled so that the passengers and freight failed to reach their destination in proper time, or if it had broken down and thereby injured some one, or if when placed at rest it had run away in consequence of the leakage through the throttle valve, different questions would have been presented for our consideration.

But without violating any rules that have been laid down for the protection of employees we are constrained to hold in this case that this was not as to the plaintiff a dangerous engine, that it was reasonably safe and proper, and that there was no negligence on the part of the defendant in putting it to the service in which it was employed, and that therefore, upon the facts, as they now appear, the plaintiff has no cause of action against the defendant; and this conclusion finds ample support in the cases of Burke v. Wetherbee, 98 N. Y., 562; Marsh v. Chickering, 101 id., 396; Sweeney v. B. & Jones Em. Co., 101 id., 520.

In the case of Marsh v. Chickering, Judge Miller, following prior authorities, said: “Therule is that the master does not owe to_ his servants the duty to furnish the best known or conceivable appliances; he is simply required to furnish such as are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances.” Suppose in that case the ladder had when new, been furnished with hooks and spikes, and they had by use been broken off, how could it have been claimed that the liability of the master would be different ? Would the master have been bound to replace hooks and spikes which had come off, while he owed no duty to his servant originally to place them upon the ladder ? So here, was the defendant bound to restore this engine by repairs to the power which it originally possessed while it owed no duty to purchase a new engine of greater horse power than this then possessed ? It is plain that the answer to these questions should be in the negative. Jones v. Granite Mills, 126 Mass., 84; Kelley v. Silver Spring Co., 12 R. I., 112; Smith v. Railway Co., 69 Mo., 34; Fort Wayne, etc., Railroad Co. v. Gildersleeve, 33 Mich., 133; Western, etc., R. Co., v. Bishop, 50 Ga., 465; Wonder v. Railroad Co., 32 Md., 411; Philadelphia, etc., R. Co. v. Keenan, 103 Penn. St., 124.

The judgment should, therefore, be reversed and a new trial ordered, costs to abide event.

Rapallo, Miller and Finch, JJ., concur. Danforth, J., reads for affirmance; Andrews, J., concurs; Ruger, Oh. J., takes no part._  