
    John Redington, as Administrator, etc., Resp’t, v. New York, Ontario and Western Railway Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 12, 1895.)
    
    1. Master and servant—Appliances.
    It is the duty of the company to furnish a car for the transportation of railroad iron suitable for such purpose, and the loading of such iron on’ a short car is the &ct of the company and not that of a fellow-servant of a brakeman who is injured thereby..
    2, Same—Rules.
    In the absence of the promulgation of any rules for the government of its yard, the suffering of a loaded car to stand upon an inclined track without having on the brakes, is an omission of the company, and not of-a fellow-servant.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      George H. Carpenter, for app’lt; T. F. Bush, for resp’t.
   Mayham, P. J.

Michael E. Redington, the plaintiff’s intestate, while engaged, as an employe of the defendant, in coupling cars in the defendant’s railroad yard at Livingston Manor, was crushed between two cars and killed, and this action was brought by his personal representative under the statute to recover damages for such loss of life. The theory of the action is that the defendant was guilty of negligence in causing to be loaded on one of the defendant’s cars railroad iron, consisting of iron or steel rails which were two feet longer than the car, so that the rails projected more than a foot over each end of the car, and beyond the deadwood or bumpers, and thus rendering the deadwood or bumpers little or no protection to persons required to couple such car with others on the train. There was proof on the trial tending to uphold this theory. The defendant attempted to meet this theory of the plaintiff by proof that the accident occurred in the daytime; that the condition of the car and its loading were plainly to be seen; that the business of coupling cars is dangerous, and the danger is one of the incidents of the employment; that the evidence tended to show that the car loaded with iron stood on a track with a descending grade towards the gondola car, to which the intestate was required to couple it, and that it was not secured from moving down the grade by its own gravity by brakes; and that suffering it to stand in that condition on the track without brakes down, or other fastening, was the negligence of a co-employe, for which the defendant is not resporsible. All of these questions, as they were presented by the evidence, were questions of fact proper for the consideration of the jury, and were fairly submitted by the learned trial judge. In the absence of any rules prescribed by the defendant for the government of the yard for the storage of cars and the making up of trains, it was the duty of the brakeman who is employed, subject to the order of the conductor, to couple these cars, and it was a question of fact for the jury to determine under the evidence whether the car was so loaded that it was rendered an unsafe place for the deceased to work, and whether such condition was the result of the negligence of the defendant in not furnishing suitable cars for the transportation of such rails. The platform car on which they were loaded was shown by the proof to be only twenty-eight feet long, while the rails which were- loaded upon it were thirty feet long, so that the cars could not be loaded with these rails without their extending beyond the body of the car two feet. That extension seemed to have been substantially divided between the ends of the car, so that there was an extension of one foot on either end beyond the body or frame of the car. The court properly submitted it to the jury to say whether that extension rendered the car an unsafe or dangerous utensil to be used by the intestate, who was the defendant’s employe, and whether the extension of the rails beyond the car frame produced the injury to the plaintiff’s intestate.

The legal principles involved in this class of actions have been so frequently and recently discussed that an extended examination of them in this case seems unnecessary. In Bushby v. N. Y., L. E. & W. Railroad Co., 107 N. Y. 374; 12 St. Rep. 9, it was held that the duty of the master to his servant to furnish reasonably safe, proper, and adequate machinery and other appliance for his work cannot be evaded by a delegation of that duty to another. If, therefore, the loading of these long rails upon a short car rendered the coupling more hazardous than that duty would otherwise be, and the place of coupling the cars was therefore made unsafe, so that it increased ordinary danger of coupling cars, and by reason of th'at increased danger the intestate suffered the injury complained of, it would seem to follow that the defendant had failed in its. duty to the employe, and would be liable, unless the employe was guilty of contributory negligence himself. We think, within the case above cited, that it was the duty of the defendant to furnish a car for the transportation of railroad iron suitable for the purpose for which it was to be used, and that the loading of this iron on a short car was the act of the defendant, and not that of a fellow-servant of the deceased; and, in the absence of the promulgation of any rules for*the government of the defendant’s yard, the suffering of the flat car on which this iron was loaded to stand upon a track which was to some extent an incline plane, without having on the brakes, so as to prevent it moving by its own weight, was an omission of the master, and not of a fellow-servant. The company does not appear at this station to have any rule as to the inspection of trains or cars. The dutjL therefore, of furnishing safe cars, tracks, and trains inhered in the company, as no person at that yard was charged with that special duty. In Abel v. D. & H. Canal Co., 103 N. Y. 581; 4 St. Rep. 269, the court say :

“ The law imposes upon a railroad company the duty to its employes of diligence and care, not only in furnishing proper and reasonably safe appliances and machinery and skilled and careful coemploy.es, but also of making and promulgating rules which, if faithfully observed,.will give reasonable protection to its employes.

We think ail the questions relating to the alleged negligence of the defendant in not furnishing a reasonably safe place and appliance for the performance of its work, and as to whether or not the deceased was negligent in obeying the orders of the conductor in attempting to couple these cars, and as to whether he knew of the liability of the car loaded with iron to move down upon him by reason of the brakes not being set, were questions of fact for the jury, and were properly submitted to them by the trial judge. Nor do we see any error in the rulings of the judge for which this judgment can be reversed.

Judgment affirmed," with costs. All concur.  