
    (67 Hun, 130.)
    O’MALLEY v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Second Department.
    February 13, 1893.)
    Injury to Brakeman—Violation op Rule to Inspect Brakes.
    A rule of a railroad company, requiring its freight brakemen to examine for themselves the brake appliances before using them, does not relieve the company from liability for injuries caused by defective brake appliances, unless it appear that the injured brakeman had time and opportunity to make such an examination as would.have revealed the defect. La Croy v. Railroad Co., 30 N. E. Rep. 391, 138 N. Y. 570, distinguished.
    Appeal from circuit court, Orange county.
    Action by Thomas O’Malley against the New York, Lake Erie & Western Railroad Company to recover for personal injuries received through defendant’s alleged negligence. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Lewis E. Carr, for appellant.
    John M. Gardner, for respondent.
   DYKMAN, J.

This is an appeal by the defendant from a judgment and order denying a motion for a new trial on the minutes of the court. The plaintiff' was a brakeman in the employ of the defendant, and on the morning of the accident went with a local freight train, upon which he was at work, from Newburgh to Turner’s. He remained there with his train about one hour. While there, a freight car was attached to the train, to he taken back to Central Valley. It was coupled to the engine, and after that the train stood still, with the plaintiff standing by it for 10 or 15 minutes, waiting for another train. When it started towards Central Valley it consisted of the engine, this car, and a caboose; and when it reached there it stopped, the caboose was uncoupled, and the plaintiff went forward and climbed up on the end of this freight car nearest to the engine, and gave the engineer the signal for moving back upon the switch. He then went to the rear end of the car, where the brake was, to apply it for the purpose of checking the movement as it was being backed in upon the switch. When he commenced to apply the brake he placed his right knee on the car and his left foot oil the footboard; and when he applied his strength to the brake the guard snapped, and threw him off his balance, and the footboard broke, and he fell to the ground, and the wheels of the car passed over his arm and foot, inflicting the injury for which this action was brought. The brake staff came up the end of the car through the footboard, which was located a short distance below the top of the car, and fastened to the roof by a strip of iron. On the footboard was a ratchet, which fitted into the notches of a wheel on the staff, and the footboard was supported by braces underneath. There was a crack in the footboard, and the supporting braces were loose, and the screws had so worn into the wood that they no longer held it firmly. The strap around the staff had an old crack partly through the iron. The principal effort on the part of the defendant upon the trial was .to convict the plaintiff of contributivo negligence, in this way: There was a rule of the company which required freight brakemen to examine and know7 for themselves that brake shafts and attachments, and other attachments wdiich they were required to use, were in safe and proper condition, and the insistence was that the plaintiff failed to fulfill the requirements of that rule, and so contributed to his disaster. It did not fully appear that the plaintiff had seen the rule, but as it was accessible to him, and it was his duty to examine it, he must be charged with knowledge of its existence. Yet the rule must receive a reasonable construction and application. If ample time and opportunity is afforded for the examination and inspection required by the rule, it must be made, and the consequences of failure to do so must rest upon the delinquent. But where no time or opportunity is afforded, no negligence for failure can reasonably be imputed. It may often happen that a car standing upon a side track at a way station is attached to a passing train to be drawn to the next or another station, and that such attachment is made in haste, with no time for examination; and in such a case it would be unreasonable to hold any train man responsible for failure to inspect. We think this is such a case. The car was attached but a few moments before the train was to move on for Newburgh. The delay in starting was caused by the necessity of waiting for another train,, and it was uncertain how long it would continue. The train might start at any moment, and for that reason it would have been dangerous to go under or around the car to inspect it. The defects were not so open and visible as to be detected by a glance of the eye. Their discovery would have required scrutiny, and for that there was no opportunity. The question was before the court of appeals in the case of La Croy v. Railroad Co., 132 N. Y. 570, 30 N. E. Rep. 391, but that was an extreme case, and full opportunity was given to all the train men for examination of the train after it was made up and in full operation. In fact it was on a side track, idle, for nearly two hours, and, although it was known that the train was soon to make a dangerous descent,,no effort was made to ascertain whether the brakes, which would be subjected to a severe strain, were in condition for its endurance. Questions of contributive negligence in failing to make inspections are to be determined in the same manner as other questions of the same character arising in any other way. If the facts and circumstances leave the question so plain that a verdict would not be permitted to stand in favor of the plaintiff, the complaint is to be dismissed by the trial court. We do not think this case was sufficiently plain to justify the trial judge in convicting the- plaintiff of contributive negligence as a matter of law, and that he was required to submit the question to the jury under proper instructions, as he did. The charge was faultless, and no error was committed upon the trial.

The judgment and order should be affirmed, with costs.

PRATT, J., concurs.

BARNARD, P. J.

The neglect of the defendant was clearly proven. The plaintiff was a brakeman in the employ of the defendant. The defendant was bound to apply safe appliances for the purpose of the employment. While applying a brake, the guard snapped, and threw the plaintiff under the car. The plaintiff was proven to be free from any neglect on his part. He was using the appliances in the usual way. The proof shows that it was in a weak condition by the absence of a bolt, and the two remaining bolts so loose as to be unsafe. There was no opportunity to examine the brake before the accident-on the occasion in question, and a rule to that effect must have a reasonable construction. Besides, there was proof on the trial tending to show that the rule had not been in force as to brakemen who were called upon to apply brakes. It is manifest that it could not be observed- by the employe without danger. The brakes must be applied at once when the order is given. The judgment should be affirmed, with costs.  