
    KOWALEWSKA v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    1. Raileoad Company—Death op Consignee’s Employe—Negligence.
    A railroad company, immediately after inspecting a car loaded with coal, and marking it as having been inspected and found all right, delivered it to the consignee of the coal at the top of a trestle. Soon after-wards, a workman engaged in unloading coal for the consignee was killed by reason of a defect in the brake on such car, which could readily be seen by looking under the car. Eeld, that whether the defect existed when the car was inspected was a question of fact for the jury.
    2. Appeal—Absence op Exceptions—Reveksal.
    The power of the general term to reverse a judgment in the absence of exceptions will only be exercised where it is apparent that great injustice has been done.
    Appeal from circuit court, Erie county.
    Action by Antonina Kowalewska, as administratrix of the estate of Michael Kowalewska, deceased, against the New York, Lake Erie & Western Railroad Company, to recover for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.
    Affirmed.
    Argued before HAIGHT, LEWIS, and BRADLEY, JJ.
    A. D. Scott, for appellant.
    Leroy Parker, for respondent.
   HAIGHT, J.

This action was brought to recover the damages sustained by reason of the death of the plaintiff’s intestate. On May 13, 1889, the plaintiff’s intestate was in the employ of one John Piechowiak, with others, engaged in shoveling coal on one of the defendant’s cars into a pocket of the Delaware & Hudson Canal Company’s trestle. While so engaged, another car belonging to the defendant company ran against the car in which he was working, causing him to pitch forward through the hole in the bottom of the car into which he was shoveling the coal, inflicting an injury which caused his death on the following day. The defendant was engaged in transporting coal over its road consigned to the Delaware & Hudson Canal Company, and delivered the same to that company upon the summit of its coal trestle, at which point the car loaded with coal was taken in charge by the employes of the Delaware & Hudson Canal Company, and run by the force of gravity over its trestle to the pocket or place where it was to be unloaded and there stopped, at which place the same was boarded by John Piechowiak, or those in his employ,, who unloaded the same under a contract with the latter company. It appears that there was a contract between the two companies, but the same is not printed in the appeal book, neither was it produced upon the argument. It appears, however, that the defendant company caused its cars to be inspected as they arrived at the foot of the trestle, and, if found in good condition, they were drawn up to the top of the trestle with power furnished by the defendant, and there taken in charge by the servants of the Delaware & Hudson Canal Company. On the day in question the plaintiff’s intestate was engaged, as we have described, unloading the car upon the trestle. The car which followed it was inspected at the foot of the trestle by the employes of the defendant, and the brake was found to be out of order, in this: that there was a slack to the chain of the brake; that thereupon the inspector went under the car, and tightened the brake up so as not to let there be too much slack, and, finding that there was nothing else the matter with the brake, marked the car as having been inspected and found all right, and sent it on up the incline onto the trestle. As it arrived at the summit of the trestle it was boarded by an employe of the Delaware & Hudson Canal Company, who immediately went to the brake, and undertook to operate it, but found that he could not. He thereupon called to another servant in the employ of the latter company, who jumped upon the car, and the two together undertook to turn the brake up, using their best endeavors in this respect. Meantime the car was increasing in speed, running along a slight incline upon the top of the trestle. Other employes of the latter company, observing the situation, threw boards under the wheels attempting to stop the car, but were unable to do so, and it proceeded on down the incline, colliding with the car in which the plaintiff’s intestate was at work, causing the accident already described; After the collision, the brake was examined, and it was then found that the lever was out of its guard.

It is contended that the defendant company had fully performed its duty, and that, if there was any negligence, it was that of the Delaware & Hudson Canal Company in not inspecting the car as it arrived at the summit of the trestle, when it was taken in charge by the employes of that company. It may not be worth while to examine the question of the liability of the latter company, for where injury occurs by reason of the negligent acts of two railroad corporations their liability is several as well as joint, and an action can be maintained against either one of them. Kain v. Smith, 80 N. Y. 458. We will therefore dismiss the subject by calling attention to the fact that the car was inspected by the defendant’s servants at the foot of the incline to the trestle, and so marked, thus representing to the servants of the Delaware & Hudson Canal Company that the car was in good order. The question is, therefore, as to whether the servants of the defendant company properly inspected this car. If was inspected, as we have seen, with the result described. Was the lever then out of its guard? If so, it was not discovered by the inspectors. The lever could have been readily seen by looking under the car. It was not a secret or hidden defect, and if the lever was then out of its guard the inspectors were negligent in not discovering it. It is claimed that some of the pockets in the trestle were filled with coal above the tops of the rails, and that the lever might have been knocked out of its place by the coal in some of the pockets over which it passed upon the trestle. There was evidence, however, that on the day in question none of the pockets were filled with coal above the rails, and that consequently the lever could not have been misplaced in this way. Whether the lever was then out of place at the time the car was inspected, or was subsequently displaced while the car was ascending the trestle, was a question of fact for the jury, and, a verdict having been awarded in favor of the plaintiff, that issue must be regarded as settled.

The plaintiff’s intestate was not a coemploye with the servants of the defendant, and the rule that the master is not liable for injuries resulting from the negligent act of fellow servants has no application. Svenson v. Steamship Co., 57 N. Y. 108; Young v. Railroad Co., 30 Barb. 329. The deceased was, as we have seen, engaged in shoveling coal in company with others, and does not appear to have seen or heard the approaching car until the collision. There was no evidence tending to show that he was guilty of contributory negligence.

The appellant complains of the charge of the court as containing expressions tending to prejudice the jurors against the defendant, and to induce them to render extravagant damages. No exceptions, however, were taken upon the trial to the expressions now complained of. The general term may reverse, even though there are no exceptions taken. Roberts v. Tobias, 120 N. Y. 1, 23 N. E. Rep. 1105; Cudahy v. Rhinehart, 133 N. Y. 248-252, 30 N. E. Rep. 1004. But this power will only be exercised where it is apparent that great injustice has been done. A careful "reading of thé charge had led us to the conclusion that it was -quite fair to the defendant, and the expressions complained of, taken in connection with that which precedes and follows, should -not have operated to prejudice the jurors.

Numerous exceptions were taken to the charge as made and to the requests to charge that were refused. We have examined them, but find none which we think require a new trial. The judgment and order appealed from should be affirmed. All concur.  