
    John H. Welch, Pl’ff, v. The New York Central & Hudson River Railroad Co., Def’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    
      T. Master and servant—Negligence—Brakeman.
    While plaintiff was attempting to couple a car to the engine, and while attempting to draw an iron pin which had become fast in the drawhead of the engine, he stumbled against a pile of cinders on the track, and in trying to keep from falling his fingers were crushed between the bumpers. There was no proof as to how long the pile of cinders had been there, nor that defendant had notice thereof. Held, that no negligence on defendant’s part causing the injury was shown.
    3. Same—Bisks.
    The drawheads were of unequal height. Plaintiff had a straight link, but testified that he did not know but that there were crooked ones on the engine. Held, that he assumed the responsibility in attempting to use the straight link to make the coupling.
    Motion for a new trial, made by the plaintiff, upon exceptions ordered to be heard at general term in the first instance, after a verdict for the defendant, directed by the court at the close of the -evidence at the Monroe circuit in March, 1891.
    The plaintiff was a bralceman in the employ of the defendant; and while attempting to effect the coupling of an engine to a car •of the defendant he sustained personal injuries which he alleged were caused by the negligence of the defendant, and brought this .action to recover his damages.
    
      Eugene Van Voorhis, for pl’ff; Cassius C. Davy, for def’t.
   Lewis, J.

It became the duty of the plaintiff, as a bralceman in the employ of the defendant, to couple an engine to a car. 'There was, at the place where the plaintiff attempted to effect the -coupling, a pile of cindérs or ashes upon the defendant’s roadbed between the rails. In order to make the coupling it became necessary for the plaintiff to remove an iron pin from the draw-head of the engine; and in attempting to remove the pin he stumbled against the pile of cinders or ashes, and in order to prevent falling upon the ground he held on to the drawhead of the engine, and bis hand was caught between the bumpers of the. engine and the car, and his fingers were crushed.

The evidence failed to show how the ashes came to be placed, upon the roadbed, or what length of time they had been there, or who placed them there. Mo notice of the existence of the cinders was shown to have been given to .the defendant, or that they had remained there such a length of time as to be constructive notice of their presence. For all that appears in the evidence the cinders may have been deposited there the same night of the accident The plaintiff testified that when he attempted to remove-the coupling pin from the drawhead of the engine that it bad in, some way become fastened so that he was not able to pull it out,, and that while thus engaged in attempting to remove it he stumbled as above stated.

The evidence failed to show the cause of the pin being fastened-in the drawhead.

The difficulty may have arisen from one of many causes. The. plaintiff testified that he had taken the same pin from the draw-head of the engine a short time before he attempted to remove it on this occasion. The reasonable inference is, that the difficulty arose from some recent cause. The defendant was not shown to-have had any knowledge of its defective condition.

Another cause of complaint was, that the drawhead of the engine and the drawhead of the car that the plaintiff attempted to couple were of unequal height, and that the link attached to the drawhead of the engine, and which was to be used in effecting the coupling, was straight when it should have been crooked in form like the letter S. It was shown that the drawheads of cars in use, which were required to be attached to the engine from time to time, were frequently of unequal height; and that while in such cases the crooked link was more convenient than a straight one, that in the frequent changes in making up trains straight links and crooked ones were indiscriminately used; the plaintiff testified that he did not know but that there were crooked links on the engine, and in the caboose.

The plaintiff, when he attempted to make the coupling, saw that the drawheads were of unequal height, and that the link was straight, and assumed the responsibility in attempting to use the straight link.

Another cause of complaint by the plaintiff, was the failure of the company to furnish him with a coupling stick. He testified that when he entered the employ of the defendant, he signed a receipt for a coupling stick, but did not get one. He testified that they gave him a note to get one, but that there was no one in the yard office, and they never gave him one. He further testified “ I have seen lots of coupling sticks;. I have seen lots of brakemen have them, but I never saw a man make a coupling with one. I saw them in the office at Mewark, and I saw them in the cars, but they never used them.”

He had provided himself with a brake-stick which could be -used the same as a coupling-stick, but he did not use it. The accident occurred not because the plaintiff had not been furnished with a coupling-stick. He was injured while attempting with his hand to draw the pin from the drawhead of the engine. The coupling-stick could not have been used for that purpose. _ The plaintiff failed to show that the defendant was guilty of negligence causing his injuries. He suffered a serious injury, but failed to make a case against the defendant entitling him to recover.

Plaintiff’s motion for a new trial is denied, with costs, and judgment is ordered for the defendant on the verdict.

Dwight, P. J., and Macomber, J., concur.  