
    Matthew Quinlivan, Respondent, v. The Buffalo, Rochester and Pittsburgh Railway Company, Appellant.
    
      Negligence — a master is bound to furnish only a reasonably safe place to his servant — liability of the master for the negligence of his inspector—an erroneous charge is presumed to be prejudicial.
    
    In an action brought by a brakeman employed by the defendant, a railroad company, to recover damages for personal injuries sustained by him while he was descending a ladder at the side of a car, in consequence of striking a shed built by a private corporation and which encroached on the railroad’s right of way, it is error for the court to charge that it was incumbent upon the defendant to furnish the plaintiff with “ a safe place ” in which to perform his duties, as the defendant was only obliged to furnish a reasonably, safe place.
    
      It seems, that it is also improper to charge that if the defendant’s inspector was incompetent, that fact established the defendant’s negligence, and that if the inspector was competent, but negligently performed his duty, such negligence was chargeable to the defendant.
    An erroneous charge duly excepted to will be presumed to have prejudiced the party excepting to it.
    Appeal by the defendant, The Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Monroe on the 7th day of April, 1899, upon the verdict of a jury for $6,000, and also from an order, bearing date the 7th day of April, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      The action was commenced -on the 3d day of August, 1898, to recover damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant.
    
      Nathaniel Foote, for the appellant.
    
      George Raines, for the respondent.
   McLennan, J.:

The defendant, at all the times in question, was engaged in operating a railroad which passed through the village of Le Roy, N. Y. The tracks extend east and west, and consist of two main tracks, located immediately north of the passenger and freight depots, and two sidings, the regular distance apart, located to the south of the-main tracks and north of the depot buildings —■ one the Miller siding,, so called, being close to the southerly line of defendant’s right of way, which was constructed chiefly for the accommodation of a manufacturing establishment owned by Miller & Co. These works are west of and about 700 feet from the passenger depot, about 400 feet from the freight depot, and in plain view. During the early part of November, 1897, the Miller Company commenced the erection of a shed for the purpose of its manufacturing establishment, which extended upon the defendant’s right of way, the east corner being within about two feet of the south rail of the Miller siding, so called, and so close that there was barely room for a box car passing back and forth upon the siding to clear the shed. This structure was completed about the 15th of November, 1897. During its construction and after it had been completed, the defendant had used the siding-for a period of at. least eleven days prior to the accident in question, for the purpose of delivering cars to and taking cars from the works of Miller & Co.

At about eleven-forty-five o’clock in the forenoon of the 26th day of November, 1897, the plaintiff, who was in the employ of the defendant as a brakeman, and had been so employed for a year or more, was engaged with the rest of his train crew in taking three cars from the main track and putting them upon the Miller siding; for the purpose of coupling them to four • other cars which were-standing thereon, in order that all of them might be drawn from, the siding and made up into a train. As the three cars reached the-four stationary cars the plaintiff was on the ground on the side of the cars opposite the shed in question and made the coupling. He then climbed to the top of the first stationary car and let off the brake ; then walked along on top of it to the next car, to loosen its brake. The next or third car was a gondola car, and in order to reach the brake upon it he was obliged to go down the ladder at the corner of the box car next to it. While thus engaged, his body extending outward towards the shed in question, and while he was looking to the north as he swung his body around to get onto the gondola car, the train being then in motion, he was drawn against the corner of the shed and between it and one of the cars, and thereby sustained the injuries of which he complains. At the point where he descended the ladder there was sufficient room for the purposes of his work, but from that point the shed gradually extended closer to the siding, until at the last corner there was barely room for a car to pass.

The evidence tends to show that the situation made by the erection of the shed in question was dangerous ; that it had remained in such condition for such length of time prior to the accident that the defendant knew, or in the exercise of ordinary care and prudence ought to have known of it; that the plaintiff did not know of the situation, and that the character of his employment in the yard and his opportunity for observing was such that the exercise of ordinary care and prudence on his part did not require that he should have knowledge of the same. The evidence was clearly such as to make the defendant’s negligence and the plaintiff’s freedom from contributory negligence questions of fact for the jury.

The jury, by its verdict, having determined these questions favorably to the plaintiff, such determination and the judgment based thereon should stand, unless error was committed upon the trial prejudicial to the defendant.

In submitting, the case to the jury the learned trial justice in his charge stated, among other things, as follows: The master is. required to furnish a safe place for his servants where they are required to perform any duty in the course of their employment.. The defendant in this case was required to furnish Quinlivan a safe place in which to perform all the duties required by his employment. * * * The owner of real property is presumed to know the structures going up upon his land, and buildings put upon his land by trespassers; and so as to a railroad corporation. Wherever its officers are not able to superintend it, the corporation must employ others to inspect, and they must do it in such a manner as to see that their tracks are made safe, and that such structures shall not be erected as will endanger the lives and limbs of its employees who are called upon to perform duties upon the siding or in the yard. * * * The defendant was required to employ a competent person to inspect its tracks and sidings, and to look after the structures put upon its property, and if that inspector performed his duty the master is not liable. If an inspector is incompetent to perform the duty the master is liable; and if he is competent and neglects to perform his duty the master is "still liable. So in this case, if the master employed a person not capable of performing this duty, or if the performance of the duty by the person employed to look after it was negligent, that is the negligence of the master. If the defendant did not make arrangements for some one competent to look after its property then it is liable.”

To each of the propositions so stated the defendant’s counsel duly excepted.

We think the rule must be regarded as settled that, as between employer and employee, the employer is only required to use ordinary care and prudence to furnish a reasonably safe place for the employee to work, and safe and suitable tools, machinery and appliances for his use in the performance of his duty.

In the case of Harley v. Buffalo Car Mfg. Co. (142 N. Y. 31) the court says: “ The master does not guarantee the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place.”

In the case of Perry v. Rogers (157 N. Y. 251), the justice at the trial charged the jury, in substance, that the master was chargeable with the duty of furnishing a safe place for his employees to perform their work. In criticising that charge and in defining the master’s duty in such a case the court says (at p. 254) : “How, let us see what are the master’s duties. He must provide a reasonably safe place in which the servant may prosecute his labors — nota ‘safe place,’ as the learned court said in charging the jury.”

The rule is laid down in Shearman & Redfield on Negligence (5th ed. § 406) as follows: “ A railroad company is bound to use ordinary care for the purpose of laying its track, roadbed and bridges, in such manner, and keeping them in such condition, as to make the road safe for all persons having a right * * * to be upon it, * * * and it is bound to use great care in these respects for the protection of its passengers.”

The other proposition charged by the court was to the effect that if the inspector of the defendant was incompetent, that fact established the defendant’s negligence, and that if the inspector was competent, but negligently performed his duty, such negligence was chargeable to the defendant, and, in substance, that the defendant was chargeable with the duty of seeing to it that the siding upon whicli the plaintiff was injured was an absolutely safe place in which to perform his duties.

Under the authorities we think the learned trial justice in his charge to the jury failed to correctly define the duty which the defendant owed to the plaintiff, under the circumstances disclosed by the evidence in this case, and it cannot be said that the charge was not prejudicial to the defendant.

The presumption is that an erroneous instruction to a jury which is duly excepted to, is prejudicial to the party excepting.

Without expressing any opinion as to the weight of the evidence bearing upon the questions of defendant’s negligence, or the plaintiff’s freedom from contributory negligence, or upon any of the other questions raised upon this appeal, we are of the opinion that, for the reasons above indicated, the judgment and order appealed from should be reversed and a new trial ordered.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.  