
    Warner Brainerd, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
    Fourth Department,
    May 5, 1909.
    Railroad—negligence — injury to car inspector — contributory negligence — assumption of risk.
    Plaintiff, a part of whose duties as car inspector of'a railroad company was to go to the. yards of the defendant and inspect cars intended to be sent over the other railroad, upon being told by defendant’s yardmaster that a transfer of seventeen cars was ready for him, went down one side of the cars inspecting them and coming hack on the other side, found that more cars had been put in on the track for inspection. He went in between the seventeenth and eighteenth cars to inspect the pin of the seventeenth car, and while he was there the eighteenth car, which was about a foot away, was backed up, injuring him. - Plaintiff knew how business was done in the yard; that cars were likely to he put on the track where he Was at work at any timé; that no flag or notice was put up to indicate that he was at work; that he had not notified the crew putting in cars on his track that he was there, and although he saw the cars just put in near him, did not look to see where the engine was.
    
      Reid, that a finding by the jury that the plaintiff was free from contributory negligence was contrary to the evidence;
    That there was no question of assumed risk in the case, for that doctrine applies only in actions between master and servant.
    Spuing and Robson, JJ.,, dissented.
    Appeal by the defendant, The New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 19th day of October, 1908, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 13"tli day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Howard D. Newton and Joseph M. Forsythe, for the appellant.
    
      D. Francis Searle, for the respondent.
   Williams, J.:

The judgment and order should be reversed on the-law and facts, and a new trial granted, with costs to the appellant to .abide event.

The action was brought to recover damages for personal injuries, alleged to have resulted from the defendant’s negligence.

The plaintiff was employed by the New Fork Central Railroad Company as a car inspector. A part of his duties was to go to defendant’s yards and inspect cars which were intended to be sent out over the New Fork Central road so as to avoid taking cars that were defective.

On the day of the accident the plaintiff went to defendant’s yard about nine o’clock in the forenoon. He saw defendant’s train crew working in the yard shifting cars about. The yardinaster told plaintiff that the transfer was ready for "him on track 5, was made up, and there were seventeen cars there on that track. Plaintiff went at once to track 5 and found seventeen cars thereon and proceeded to inspect them. He went down on one side of the cars and back on the other side, looking over the wheels, drawbars, castings- and whatever there was to be examined. When he had inspected the seventeen cars and had come back to the place lie had started from he found some more cars had been put in on the track for inspection, but did not notice how many there were. He went in between the seventeenth and eighteenth cars to inspect that end of the seventeenth car, and while examining the knucklepin (so called) the eighteenth car, which was standing about a foot away from the seventeenth car, was suddenly moved up against that car, and plaintiff’s arm was caught and injured, and was subsequently amputated three inches below the elbow. The additional cars were put in on track 5 under the direction of the conductor of the train crew, who was subject to the order of the yardmaster.

Plaintiff had been inspecting cars in the defendant’s yard for many years and was acquainted with the manner in which the business was carried on there. There were fifteen tracks in the yard and cars were being shifted from one track to another throughout the day and night. Cars intended to be transferred to the New Fork Central road were put upon a track by themselves and were there inspected by plaintiff. While making such inspections no flag or sign was placed by the cars to indicate that the inspection was being made.

First. It was claimed that the defendant was guilty of negligence, which caused the accident in that its servants engaged in putting additional cars upon this track, No. 5, did not look to see if plaintiff was making the inspection, and did not notify him they Were going to throw the additional cars in. Apparently they did not know he was there. They did not intend to injure hinn Possibly' they were chargeable with notice that he was there. He was accustomed to be there inspecting cars designed for the MeW York Central road. The yardmaster saw him when he came and told him where the cars were placed that day for his inspection. Though the question is close I would not want to hold that it was error to submit to the jury the question of the ■ defendant’s negligence.

Second. More serious questions are presented as to contributory negligence;

The plaintiff knew how the business was accustomed to be done there, that cars were liable to be put in on the track where he was at work at all times of day. He knew that cars were actually put in on that track close to the cars he was inspecting while his work was being done. He knew that no flag or other notice was put up indicating that he was there at work, and he did not personally notify the crew who were engaged in putting cars on the track at the time that he was there, and they should be careful about moving the cars so as not to injure him. He saw cars in close proximity to him just put in, and yet he did not'look to see where the engine was or if it was liable to push the seventeenth and eighteenth cars together while he was between them. I do not see under these circumstances how it could be claimed he was free from contributory negligence as it is legally defined.

The trial court in submitting this question to the jury used only the most general language. It did not call attention to any specific things which might be considered as bearing upon this question, such as failure to give: notice to the train crew that he was there at work, his knowledge that cars were put in there while he was at work and his failure to look out for the engine or the movement of the cars. It seems as though, had there been some specific attention called to these things, the jury would not have gone wrong as they did on this question. Whatever counsel may have said to the jury in summing up, they did not ask the court to give any specific directions- to the jury to lead their minds in the proper direction on this question.

It will hardly, do to say the plaintiff might excuse himself for his total want of care as to his personal safety by assuming the train crew would not back cars against those he was inspecting even though they were putting cars on the track while he was at work. It was his duty to look and see where the engine was, what it was doing and to notify the crew he was there at work, and request them to be careful not to push the cars against those he was at work upon.

Third. There was no question of assumed risk, properly so called, in the case. That applies only between employer and employee, and this was not such a case. What plaintiff knew of things as they existed in defendant’s yard and the manner in which the business was there transacted bears only upon the question of contributory negligence.

Fourth. There is no occasion to examine questions relating to the admission or exclusion of evidence, or requests to charge, as we conclude that the evidence bearing upon the question of contributory negligence was not sufficient to warrant a finding by the jury that the plaintiff was free from such negligence.

Such a finding was certainly contrary to the evidence if not entirely without evidence to support it.

All concurred, except Spbing and Bobson, J J., who dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact.  