
    Daniel P. Smith, Resp’t, v. The Buffalo, Rochester & Pittsburgh Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    1. Master and servant—Railroad—Negligence.
    It is negligence for a railroad coinpany to substitute in the night time for a switch engine in its yard an ordinary freight engine having none of the usual appliances on switch engines designed to protect switchmen on failure to make couplings.
    2. Same.
    In such a case, although the switchman might have known of the substitution of engines and that the freight engine was not provided with safety appliances, yet being inexperienced and never having tried to make a coupling with the freight engine, he was not guilty of contributory negligence in attempting to make the coupling in obedience to his superi- or’s orders, he having a right to assume that the company had provided safeguards for his safety.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict, and from an order denying a motion for a new trial made upon the minutes of the court.
    
      Henry G. Danforth, for app’lt; E. F. Babcock, for resp’t.
   Lewis, J.

This action was commenced for the recovery of damages for personal injuries sustained by the plaintiff while employed by the defendant as a switchman in defendant’s yards at Bradford, Pa.

The plaintiff had been at work for the defendant in the capacity of switchman for nine days prior to the accident. He had prior thereto been employed by railroads in various capacities, but never before as a switchman. The defendant had in its yards two switching engines for doing that work. They were provided with applicances for the protection of switchmen when engaged in •coupling cars. In front of these switch engines, and running .across the front thereof, was a foot-board about twelve inches wide, upon which the switchman could stand when making couplings. They were also provided with a projection in front -called a mouth organ or draw-head; the front/end was large and had three openings to receive a link. The draw"-head acted in a measure to prevent the engine and the car when being coupled •coming near enough to each other to injure the switchman. On the night of the accident the plaintiff went on duty at 6:30 P. M., .and commenced switching with a regular switch engine, but early in the night, without his knowledge, the switch engine was sent to "the shop for repairs, and a regular road freight engine was substituted for use in the yard. It was a heavy eight driving-wheel engine, and was not provided with any appliances for the protection of the switchman while making couplings. It had the usual pilot or cow-catcher which extended out about five feet in front and coming to a point. The coupling appliance consisted of an iron draw-head, commonly known as a bull nose, which extended from the face of the pilot beam a distance of two and a half feet. The face of the bull nose was twelve inches long and ten and one-eighth inches broad. The opening in the head of the bull nose was five inches square; this was to receive a link. There was a step or foot-rest on the pilot fifteen inches long, projecting five inches from the outside of the slats composing the pilot The end of this step was thirteen inches from the end of the pilot.

The plaintiff was directed by the yard conductor or headswitchman to couple the engine to a passenger car; it was dark at the time. The passenger car w'as provided with what is known .as a Miller coupling, but it had neither bumpers, safety blocks nor dead-woods. These Miller draw-heads extend out from the platform of the car about a foot, with a face width of about eight inches, with an appliance to receive a link. Attached to it is a strong spring which- gives a play to the draw-head to the left of about three and one-half inches. Near the front end of it is a clutch or jaw, and when two of these draw-heads come together, -owing to this play they pass each other until the clutches are opposite, and then close by springs automatically. In attempting to effect the coupling on the occasion of the accident the plaintiff stepped with his left foot upon the ledge or step described and balancing his body upon that foot, the other foot having nothing ■to rest upon, with his lantern upon his arm he took .the links attached tó the draw-head of the engine in his left hand and with a pin in his right hand attempted to insert the link into the Miller -coupling and secure it thereto by dropping the iron pin into the link. He failed to insert the link and the two draw-heads came together, passed each other and the draw-head of the passenger car caught plaintiff’s left leg between it and some part of the pilot and crushed it, injuring it so that it necessitated amputation. The accident occurred before daylight in the morning.

The plaintiff attempted to make the coupling in the ordinary manner, but obviously with the appliances furnished him it was a hazardous and dangerous thing to do. There was an entire absence of any safeguards to protect the plaintiff’s person in ease of a failure to effect the coupling. Standing, as he was required to do, upon one foot with the lantern upon his arm, with both hands engaged, it is not surprising that he failed to secure the link in the passenger car. It was, we think, inexcusable negligence on the part of the defendant to use such an unguarded and unprotected engine for such a purpose, especially in the night time. In view of the terrible consequence likely to result to the plaintiff if the slightest mishap should occur, it was the defendant’s duty to provide him with every reasonable and well-known safeguard to ¡prevent injury to his person. This it failed to do, and the jury very properly found the defendant was guilty of negligence causing the injury to the plaintiff.

The evidence tended to show that there was in common use, and ¡had been for many years upon engines and cars, bumpers and other appliances for the protection of men when engaged in ■coupling cars.

It was the first time the plaintiff had attempted, to effect a ■coupling with this engine. He was directed by his foreman to do the work. He had no time or opportunity to investigate the engine and car to ascertain if there were appliances for his protection. The exigencies of the business required prompt action on his part, and it became a question for the jury to determine from the evidence whether the plaintiff was guilty of negligence contributing to his injuries. While the plaintiff may have known in a general Way that the engine was not provided with dead-woods, he had a right to assume that the defendant would not require him to use an appliance without some safeguard for his protection.

The defendant has no cause to complain of the charge to the jury. The law of the case, taking the entire charge together, was carefully and correctly stated.

We find no reason for disturbing the judgment.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Haight, J., concur.  