
    Giovanni Pullutro, Pl'ff., v. The Delaware, Lackawanna & Western Railroad Company, Def't.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed November 19, 1889.)
    
    1. Master and servant—Negligence.
    Plaintiff, a foreigner, had been employed for a day or two on defendant’s gravel train. When loaded, the train started and the employees were ordered to get on. The car on which plaintiff worked had no bumpers and his leg was crushed while he was attempting to get on. Held, that under the circumstances it was a question for the jury whether defendant had discharged its duty in furnishing safe appliances for the work, and whether plaintiff assumed this risk.
    
      2. Same.
    Assuming that the master tailed to discharge such duty, the fact that negligence of a co-employee contributed to the injury will not absolve the master from liability.
    3. Same—Contributory negligence—When a question eor ¿toby.
    Under the circumstances of the case it was a question for the jury whether the plaintiff, in attempting to board the train while in motion, was guilty of contributory negligence.
    Motion for a new trial by plaintiff on a case containing exceptions ordered to be heard at the general term in the first instance.
    
      Emory P. Close, for pl’ff; John G. Milburn, for def't.
   Hatch, J.

The action is brought by plaintiff to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. It appeared upon the trial that plaintiff was employed as a laborer upon defendant’s gravel train, and entered such employ on the 26th day of August, 1888, continuing therein until noon of the following day, when he sustained the injury complained of. The course of plaintiff’s employment required him, in company with some thirty other .co-laborers, to unload cars of gravel, and then reload the same with ties, which lay by the side of the track. On the day of the injury, the train consisted of ten or twelve flat bottom gravel cars with an engine attached; it had gone out at seven o’clock in the morning, and had loaded and unloaded the cars at different places for a distance of five or six miles, the train running back and forth several times for that purpose, the men being required to get on and off the cars at the several times. The method of conducting the business was for the gravel to be unloaded, then some of me men got down from the cars, picked up the ties and placed them upon the cars; others remained thereon to arrange them; during this time the train would sometimes move very slowly and sometimes stop from two to five minutes. When the time arrived for the train to leave, an order would be given by one of the foremen to “ hurry up,” when the men would quickly get upon the cars, the train starting immediately upon giving the order. These cars stood “ about six feet high from the track, the top of it about the height of a man’s shoulders.” On some of the cars there was a hook or iron step on the side a little ways from the wheel for the men to get up by. When the cars were standing the men got up by placing their feet on the side; “ when the train was moving, the men, in order to get up onto the car, put one hand on the edge of the car and the other hand on the car next to it; that is, on the edge of each car, and jumped up * * * that the men always got aboard in the same way.” The car upon which plaintiff worked was not supplied with a hook or step or other appliance by which to get upon the car. This car, as well as the one next it, was not supplied with bumpers or dead woods or any other appliance to prevent them from coming immediately together. On the occasion of the injury plaintiff was upon the ground loading ties, when he, with the others, saw that the engine was about to start, the order came from the foreman to “ hurry up ” and plaintiff started to get on the car; some had gotten up (more than half), others were following. “ The engine had started very slowly at the time the plaintiff began to get up * * * the train was in motion * * * was running just nice.” Plaintiff placed his hands on the ends of the two cars, they being apart, and jumped up; as he jumped, and before he cleared the cars, the two ends came together, caught and crushed one leg, necessitating amputation. He had never before seen cars come together in that way. No instruction or warning was given by defendant to plaintiff as to getting upon or between the cars. Plaintiff was a foreigner; came to this country on May 7, 1888; could not speak English, but understood the phrase “hurry up,” which the men were obliged to obey when given. At the close of the proof defendant moved for a non-suit upon three grounds: First. That there was an absence of evidence showing negligence on the part of the defendant. Second. That if there was negligence, it was that of a co-employee. Third. That the plaintiff was guilty of contributory negligence. The court granted the motion upon two grounds: That there was no evidence to show that defendant had failed to discharge its duty; and, second, that the plaintiff had assumed the risk of such an injury as the one complained of.

In the orderly disposition of this appeal, it becomes necessary to determine, first, whether the defendant discharged the obligation it was under to the servant. The general rule of law is that the master owes a duty to provide for the servant safe and suitable tools, machinery and appliances for use in and about his employment ; also a safe and secure place in which to perform his duties, and, where necessary, to provide competent and skillful workmen to direct the servant, and assist him in the performance of his duties. Pantzar v. Tilly Foster Mining Company, 99 N. Y., 372.

Has this duty been here performed ? The plaintiff was but recently employed, and there is nothing showing or tending to show that he was possessed of more information with respect to the cara, and the methods of performing the work, than such as he may have gathered during the period of his employment. The car upon which he was placed at work was provided with no appliances or means to aid him in alighting therefrom or getting thereon. It must be presumed that defendant knew the common mode adopted by the plaintiff and others, in the course of their employment, in performing these acts as duty required them, and acquiesced therein. Benzing v. Sleinway, 101 N. Y., 552.

It consequently became its duty to take all reasonable precautions to make the dangers as small as possible. That the master would so do might be prudently relied upon by the plaintiff. Kain v. Smith, 89 N. Y., 375; Hawley v. Northern C. R. R. Co., 82 id., 370.

It is conceded that the car upon which plaintiff worked and the one adjoining were unprovided with bumpers or dead woods or other appliance to prevent the cars from coming in immediate contact. Taking into consideration the course of business, the manner in which the cars were used, would not a due regard for the safety of the workmen require that the cars he supplied with this or a similar appliance for protection ? In Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y, 546, plaintiff’s intestate was a brakeman, riding in the caboose, when he noticed the approach of a train in the rear, and, fearing a collision, he stepped from the caboose to its front platform. The car immediately in front was a coal dump, and the buffers overlapped so as to be useless. The collision occurred in the rear, and the dump was forced past the bumpers upon the steps coming in contact with the front part of the caboose, inflicting death.

Judge Danforth, in delivering the opinion of the court, says: “ Here it was the duty of the defendant to provide a car properly fitted, not only with running apparatus, as wheels, stopping apparatus, as a brake, but with buffers of some kind to protect the car and its servants necessarily or' lawfully thereon from the effect of a collision. Ordinary and usual care in the equipment and running of a road requires this last appliance, or some equivalent contrivance, as much as it does either of the others. There was in effect no buffer or anything to take its place on the car upon which the intestate was employed. Upon the evidence, it may be said that its absence was the proximate cause of the injury.”

In Gottleeb v. N. Y., L. E. & W. R. R. Co., 100 N. Y., 462, it was held that the evidence tended strongly to show that the main purpose of bumpers on the ends of freight cars was for protection of brakemen in the discharge of their duties. It seems quite clear from these authorities that bumpers are a necessary appliance upon any car for its safety and also the safety of persons required to be employed upon it. It is quite as necessary that this appliance should be present to prevent cars from coming together, as it is for a brake to stop them when upon a down grade. And when in the course of employment by servants engaged thereon they are, or may be, required to go between them, to the knowledge of the master, it would seem to be a gross neglect of duty not to provide them. Under the evidence in this case, we think it a fair question for the jury to say whether or not the defendant has discharged the obligations it owed, in this regard, to plaintiff. It is, however, said that plaintiff assumed the risk of such injury as he has sustained. It is the rule that upon entering into employment the servant assumes the usual risks and perils of the service, and also such as are incident to the use of machinery and property of the defendant as it then exists, so far as such risks are apparent. Gibson v. Erie R. Co., 63 N. Y., 452. But this rule is subject to the qualification that the master must first have performed those duties which the law enjoins upon him. Benzing v. Steinway, 101 N. Y., 551-552 ; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id., 552.

Here, as we have seen, the defendant disregarded its duty in furnishing bumpers to the cars; at least the question as to whether they did or not should hav,e been submitted to the jury. It is true that when the servant accepts employment, and at that time the machinery and implements are of a certain kind or condition, and the servant knows it, he can make no claim upon the master to furnish another or different machine or safeguards, and if he is injured thereby no liability attaches. Sweeney v. Berlin & J. E. Co., 101 N. Y., 520.

But this rule presupposes knowledge, or opportunities for ob taining which charges the servant with it, equal with the master. In this respect, however, regard must be had to the knowledge of the employee as to the machinery and structures on which he is employed, also to his capacity and intelligence, and his opportunities for information, and in addition thereto the servant has a right to rely upon the master to protect him from danger and injury. Powers v. N. Y., L. E. & W. R. Co., 98 N. Y., 280; Marsh v. Chickering, 101 id., 399; Sullivan v. India Manufacturing Co., 113 Mass., 396.

It was also said by Judge Folger, in Laning v. N. Y. C. R. R. Co., 49 N. Y., 535, “ it is at his option ordinarily to accept or to remain in the service or to leave it; and if he remains without promise of a change or other like inducement, it is for the jury to say whether or not he voluntarily assumes the risks of defective machinery and of incompetent servants, whereof he has full and equal knowledge.” The plaintiff here had been in the employ of the defendant a day and a half; had been but a short time in the country; he could not speak our language, and was, presumably, in a large degree, unacquainted with the methods of the defendant in the transaction of its business; he had never seen cars come together as these cars came; there is no proof that his attention had ever been called to the lack of proper buffers, or that he had the slightest knowledge upon the subject; or that he had received any instructions in respect thereto. Under such circumstances, we think it proper to submit both questions, here discussed, to the jury, for their determination. Fredenburg v. Northern C. R. R. Co., 114 N. Y, 582 ; 24 N. Y. State Rep., 550.

The defendant further insists that the injuries here sustained were, in any event, the result of the negligence of a co-employee, and also that plaintiff was clearly guilty of contributory negligence. As to the first claim, it may be said, assuming the injury was caused in part by the negligence of a co-servant, that if we are right in holding that it was a question for the jury to consider whether the defendant had discharged its obligation in furnishing suitable machinery and appliances, and whether such failure was the proximate cause of the injury, then the authorities already cited dispose of this claim, as it is held that where the negligence of the master concurs with that of a fellow servant in producing the injury, the master is not, thereby, excused. The second ground is predicated upon the fact, that plaintiff boarded the train while in motion, and the claim is, made that this is per se negligence, which contributed to the injury. Defendant relies upon Hunter v. C. & S. V. R. Co., 112 N. Y., 376; 21 N. Y. State Rep., 1, and Solomon v. Manhattan R. Co., 103 N. Y. 443; 3 N. Y. State Rep., 636.

In the first of these cases plaintiff attempted to board a train moving at the rate of from four to six miles an hour. He was charged as matter of law with a negligent act. In the second plaintiff was non-suited for attempting to board an elevated railway train, with the movement of which he was perfectly familiar, after the same had started, and when the gates guarding the platform were partly ■or wholly closed. It was held that he was properly non-suited. Judge Peckham in the case first cited, delivering the prevailing opinion of the court says, There may, undoubtedly, be cases in which an attempt to get on or off a moving train would not be regarded as negligence as a matter of law, and where the question of negligence upon all the facts of the case should be submitted to the jury." Id., 376; citing Filer v. N. Y. C. R. R. Co., 49 N. Y, 47. Under this rule, which we believe is the latest expression of the court of last resort upon this subject, it is not in all cases per se negligence to board or alight from a moving train. As applied to the facts here we think it a question for the jury. The plaintiff was employed subject to the direction of a foreman; the demands of the business evidently required that the work of loading and unloading should be done with as much rapidity as possible. The order to board the train and the signal for it to move, were almost simultaneous acts. The'order came from the foreman to “hurry up,” the plaintiff started for the train. “ The engine had started very slowly at the time the plaintiff began to get up * * * the train was in motion * * * was running just nice,” are the various expressions of the witnesses. From this evidence the jury would be authorized in finding that the train was barely moving when the attempt was made to board it, and that there was but very little, if any more danger than when standing. This was the only means furnished by defendant to get aboard, or at least it was the usual way in which it was done; he was obliged to get aboard then or be left, apd he then had his orders. Under similar circumstances it is said, “ The law should not be too exacting." Hawley v. Northern C. R. Co., 82 N. Y., 372. See Terry v. Jewett, 17 Hun, 400.

Under all the circumstances we think it presented a question for the jury to say whether such act was negligent or not. It is not entirely certain, if we assume the act negligent, that such negligence was the cause of or contributed to the injury. Blaintiff had placed his hands upon each car to swing himself up, he must have succeeded in placing one leg above the car, as only one was caught, the movement of the train did not, so far as the evidence discloses, interfere with his ability to board the car or prevent him from so doing; what did interfere with such attempt was the absence of an appliance to prevent the cars from closing up. With such protection there it leaves nothing to show but that the plaintiff could have safely got on board. So that it may not be said with certainty that this action produced the injury. On the contrary the j ary would be authorized to find that the proximate cause of the accident was the closing of the cars, permitted by the absence of the bumpers, and that to this cause the accident was solely due. We are of opinion, therefore, that the exceptions taken should be sustained and a new trial ordered, with costs to abide the event.

Beckwith, Ch. J., concurs; Titus, J., not sitting.  