
    James McNeil, Adm’r App’lt, v. The New York, Lake Erie & Western Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed, July 28, 1893.)
    
    1. Master and servant—Negligence—Failure to block frog.
    A master is not bound to furnish the best kind of appliances or to give an extreme character to the structure so as to insure safety. The measure of duty is reasonable care.
    S. Same—Assumption of risk.
    Plaintiff’s intestate, a switchman, while uncoupling moving cars, caught his foot in a frog and was run over and killed. The evidence tended to show that some guard rails were blocked and some not. Held, that defendant was not liable for failure to block the frog, and that intestate assumed the risks of the employment, such as the one in question.
    Appeal from judgment dismissing the complaint.
    Action to recover damages for the death of plaintiff’s intestate, Arthur McNeil, while in the employ of defendant.
    
      John W. Lyon, for app’lt; Lewis E. Carr, for resp’t.
   Barnard, P. J.

Arthur McNeil on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant, and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between the guard rail and the main rail. The negligence claimed on the part of defendant is that the company did not block the guard rail, which is done by placing in the open rail between the two rails something which would prevent the foot of an employe from being caught between the two rails. The rule is that an employe assumes the risk of the employment. Kern v. DeCastro Company, 125 N. Y., 50 ; 34 St. Rep., 363 ; Davidson v. Cornell, 132 N. Y, 228; 43 St. Rep., 887.

The master is not bound to furnish the best kind of appliances or to give an extreme character to the structure so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked and some not. The case cannot be distinguished from the case of Appel v. Buffalo, etc., R. R. Co., 111 N. Y., 550; 20 St. Rep., 90.

The nonsuit was, therefore, right, and the judgment should be affirmed, with costs. *

Dykman and Pratt, JJ., concur.  