
    Peter Shields, Sole Ex’r of James Murphy, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Master and servant—Negligence.
    Plaintiff’s testator had charge of the movements of defendant’s freight and coal cars in its yard. He directed two coal cars to he moved and jumped upon the last one. and was next seen on the track under the coal, which had escaped through the trap in the car. The chain fastening the trap had been broken, and had been mended with wire two weeks before, of which fact deceased had knowledge. Held, that the questions of negligence and contributory negligence were properly left to the jury.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      Robert F. Wilkinson, for app’lt; Hackett & Williams, for resp’t.
   Dykman, J.

—This is an appeal from a judgment in favor of the plaintiff entered upon a verdict obtained at the circuit, and from an order denying a motion for a new trial on the minutes of the court

The testator of the plaintiff was in the employment of the defendant at Poughkeepsie, and on the 19th day of January, 1889, he received an injury while in the discharge of his duty, and he died about two months thereafter.

This action was brought under the statute upon the allegation that his death resulted from the negligence of the defendant.

The general duty of the deceased was to move and switch the cars around the station at Poughkeepsie and to place them where they were required, and it was customary there to keep two coal cars standing upon a side track under the coal chute to receive the coal dropped onto the track, and those cars were moved from the east to the west side of the main tracks as occasion required, and when they were filled they were switched upon the coal chute and emptied.

The deceased had full charge of all the coal cars; he was especially in charge of the movement of the coal cars and picking up the coal. The engineer was under his orders, and any one else who assisted him to move the cars.

On the day of the accident two coal cars about two-thirds full of coal were "standing on the east side track, and the deceased signalled the engineer to couple the engine to the cars, which was done, and then the deceased got up on the rear end of the rear ear by the brake, and the engine started north with the two cars to switch them back upon the west side track, and that was the last seen of the deceased previous to the accident No one saw how it happened, but the deceased fell to the track, and was found there under the coal in an injured condition.

The car upon which the deceased stood when he was seen last had been in use at that place for several weeks; there was a trap in the bottom which fell or was let down to empty the car, and was raised again by a chain attached to the trap and wound up on a cross bar. The chain was fastened to the bolt which runs through the cross bar, and to the bottom of the car. When the bottom drops down, as it does when they unload the coal, the chain goes down with it and lets the coal out. When they want to close this bottom they wind up this bar with a large wrench, and that turns the chain around the cross bar, and that closes the bottom of the car; the link that holds the trap was broken; there are two of these, and the link was broken about three links from the comer of the trap of the car. It was broken two or three weeks before the accident.

When the deceased was found under the coal the trap of the car was hanging down, and the chain, which was designed to hold it in its place, was broken. The chain had been broken and mended with wire two weeks before, and three days before the bottom of the car was repaired by putting boards into it to prevent the coal from falling through the trap, which was partly opened and could not be closed in the usual manner by winding up the chain on the cross-bar.

It appeared that the deceased had knowledge of the condition of the car, and saw the boards placed in the bottom.

At the trial, and upon the argument before us, the theory and contention of the defendant was that the uncontradicted proof left no question for the jury either respecting the negligence of the defendant, or the contributory negligence of the deceased but we find ourselves unable to coincide with this view.-

While the proof is harmonious as far as it proceeds, it yet leaves much room for legitimate inference, and from the facts established diverse conclusions might well be reached by different minds.

The deceased was in the discharge of his duties; the car he was using was defectiye, and he knew it, but did he have reason to believe it would endure the use to which it was subjected, or was it careless for him to use it ? The question was pre-eminently proper for the determination of the jury, and was not so plain as to justify its decision as a matter of law.

The deceased was found under the coal, with the trap down and the chain broken. How did he come there ? Did he go through the bottom of the car with the subsidence of the coal, caused by the breaking of the chain and the falling of the trap, and thus become involved and covered with the coal ? The question is one of fact and not of law, to be answered by the jury and not by the court.

We think the case was properly sent to the jury, ana that there was proof sufficient to sustain the verdict.

The judgment and order denying the motion for a new trial should therefore be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  