
    Anna Freemont, as Administratrix, etc., of Joseph Freemont, Deceased, Respondent, v. Boston and Maine Railroad Company and the Delaware and Hudson Company, Appellants.
    Third Department,
    March 7, 1906.
    Negligence — death of hrakeman while coupling defective cars — failure of defendant to promulgate proper rules — recovery by plaintiff sustained— evidence — opinion of expert as to rule properly received — Employers’ Liability Act — assumed risk question of fact — extra allowance denied.
    The. plaintiff, a hrakeman in the employ of the defendant, while coupling a defective car in the yard of the defendant by means of “a chain hitch,” was injured so severely that he died. Evidence was offered of .a method in actual use by other railroads in coupling such defective cars, which was not promulgated as a rule by the defendant, but which would have been a reasonable and practicable rule for conducting the work at which the deceased was engaged.
    
      Held, that the jury were warranted in finding the defendant negligent in not providing such rule;
    That the fact that the tracks on which the decedent was at work had switches at both ends, while those on which the plaintiff’s expert witness had worked did not, rendered both the danger and the need of a strict rule the greater.
    When said expert in answer to a question as to whether the rule was practicable for use in a freight yard has answered, “Isuppose it would be a practicable rule, ” it is not error to refuse- to strike out such answer, for the witness'was testifying to his opinion, which was competent.
    That the case was not extraordinary or difficult within the meaning of section 3253 of the Code of Civil Procedure, and that an order granting an extra ' allowance should be reversed.
    
      Appeal by the defendants, the Boston 'and Maine Railroad Conn pany and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 13th day of May, 1905, upon the Verdict of .a jury for $5,000; also from an order entered in said clerk’s office on •the 17th day of May, 1905, denying the defendants’ motion for . a new trial made upon the minutes, and -also from an order entered on the 17th day of May, 1905, granting the plaintiff’s motion for an extra allowance.
    . The defending railroad companies jointly ówn and operate a freight yard at Mechanicville. On the west side are some twelve tracks, known as the Boston and Maine tracks; and On the east side are about eighteen tracks, known as the Delaware and Hudson tracks. Plaintiff’s intestate* Freemont, had been employed by the defendants in said yard as a brakeman for about six months prior to November 10, 1904, upon which date he received injuries from which he died on November" eighteenth. The accident causing such injuries occurred on track No. 8 of the Boston and Maine tracks. Track No. '8 was used to temporarily store cars awaiting final assignment to a fast freight then in process of being made up. One crew at the south end would haul, cars from different tracks and shunt them onto track No. 8, while another crew at the north end would haul these same cars to whatever fast freight their destination might be.. Between fóur and five o’clock on the morning of November tenth, Freemont’s crew had' taken bff about fifteen cars from the north end of track No. 8'when they came to a defective car, which could only be removed .by means of a chain hitch. ■ Such a coupling must be made by going between the cars and inserting a link of the chain into the drawhead of each of the cars to be coupled and dropping a pin through the link. While engaged in- . doing that work, cars were shunted upon the south end of said track No. 8, and ran against the one which the deceased was endeavoring to couple with the engine, and he was thereby caught between the. car and engirie, and received the injuries from which he died. The plaintiff, as administratrix of said deceased, claiming that such death was occasioned by the negligence of the defendants; brought this action to recover for the same. The jury rendered a verdict in her favor in the sum of $5,000, and from the judgment entered thereon, and from an order denying the defendants’ motion for a new trial on the minutes, this appeal is taken. A motion was also made by plaintiff for an extra allowance of costs, under section 3253 of the Code of Civil Procedure, which was granted, and from this order the defendants also appeal.
    
      Lewis E. Carr, Jarvis P. O'Brien and Martin L. Murray, for the appellants.
    
      G. B. Wellington, for the respondent.
   Parker, P. J.:

The trial judge, at the request of the defendants’ counsel, substantially charged the jury that they were authorized to find the rule suggested by the plaintiff a necessary and' proper one fo'r this case, if the proof showed that such rule was in force on some other road, or if it showed that it was practicable and reasonable to provide against such an accident, or if the propriety and necessity of such particular rule was so Obvious as to make it a question of common experience and knowledge. Such charge must be deemed to furnish the law of this case, and also seems to be in harmony with the decisions ilpon that subject. (Larow v. N. Y., L. E. & W. R. R. Co., 61 Hun, 11; Koszlowski v. American Locomotive Co., 96 App. Div. 40, 44; Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582, 585.)

Applying such law to the facts of this casé and it seems clear that the jury were authorized to find that there was a reasonable and practicable rule which the. defendants could and should have furnished for use in this Mechanicville yard, and that their omission to promulgate such a rulé was negligence which contributed to the death of the plaintiff’s intestate. Drake, an expert witness sworn on- the part of the plaintiff, testified that the rule suggestéd by the plaintiff’s counsel would have been a reasonable and practicable one under which to have conducted such work in the yard as the deceased was engaged in when he met his death. He also stated that such work was, in actual practice, conducted by the employees in different yards where he had worked after the method suggested in the rule, although no such rule was actually promulgated by any of the companies for' which they worked,, thus' indicating that such method was not only a practicable one but was also a.reasonable and necessary method. This witness had worked for years in many different yard's where similar work was carried on, and for some time as a manager of such yards, and was evidently competent to judge whether the rule which the" plaintiff claimed should have been .¿adopted was a reasonable and practicable one for the protection of the nien, engaged in such work; and if the jury correctly reached the conclusion that such witness was correct-in that respect, it was for it to further determine whether the defendants had performed their full duty to the deceased in neglecting to provide any rule whatever upon that subject. '.

I am of the opinion that, under the proofs in this case, the jury were authorized to find the defendants negligent in not providing such a rule as was suggested on the part of the plaintiff upon the trial of this Case.

It is-urged by the defendants’' counsel tliat the- evidence of the plaintiff’s witness Drake' does not really furnish" the information which I have above claimed for it. From a careful examination of such evidence as it appears on this record, I am satisfied that such is its fair .import and meaning; and it must also be borne in mind that no contradiction" of such evidence .is given, and that no skilled evidence has been offered by the defendants to show wherein such a .rule would have been either impracticable, unreasonable or useless.

It is urged, however, that tliis witness was not competent as an expert because thé yards in- 'which he had worked did not have switches connecting at both ends with' each other. But the work of going in between the ends of ■ cars and coupling with a link or chain and pin on such switches was usual in the -yards' and in all essential features the work was .-the same except,' perhaps,, thé danger was greater and a stringent rule more- needed in the yard in question than in one-where an entrance could be made at only one end. ' . - - ■ ' ' -;

It' is also urged that error Was made on the trial by the- judge refusing to strike out on-the defendants’- motion the answer of such ■witness. On the- trial the plaintiff’s" counsel put" to such witness a supposed rule, and asked diim whether it "■would be -a practicable rule for use in a freight yard. He answered: “Yes, I suppose it would be a practicable rule, but understood by railroad men.” The plaintiff’s counsel asked to strike1 but the latter part of this answer, “ but understood by railroad men,” as not responsive, and that the rest remain. The court replied : “ I strike out all except his answer stating that that would be a practicable rule.” By this the court meant that he retained what the plaintiff’s counsel asked to have retained, and struck out what he asked to have stricken out. To this the defendants’ counsel excepted, and then asked to strike out so much of such answer, viz., “ I suppose it would be a practicable rule,” on the ground that it is not a statement of fact. This motion was denied and defendants excepted. He strenuously urges that that was reversible error. I think not. The most that was asked from this witness was his opinion. He was testifying as an expert, and hence his opinion was properly, received. The trial judge did not “ transform a supposition into a fact,” but merely treated the phrase used by the witness as an expression of his opinion.

The defendants’ counsel further urges that the injury which the deceased received in this case resulted from a risk that was plain and obvious, and hence it was one for which no negligence can be predicated against the defendants.

By section 3 of the Employers’ Liability Act (Laws of 1902, chap. 600), under which this action is brought, the question of whether or not the deceased assumed the risk, under circumstances similar to these, is no longer one of law. It must be left to the jury, and the trial judge in this case left that question to this jury. The only question, therefore, left to this court in this connection is whether we should reverse the finding of the jury upon that question. If the risk of the accident which killed the deceased was an obvious one, and was in fact assumed by him, he cannot reedver. If it was not assumed by him he is not. thereby barred from recovering. I am of the opinion that we should not disturb the verdict upon this point. An analysis of the evidence is not needed in an opinion. Suffice it to say that it is-not entirely certain that the deceased had such, a knowledge of every detail of the method of carrying on that work, and of the situation under which they were working, as to make the risk obvious to him. The burden was"upon the defendants to prove it, and so T conclude that we should not now disturb it. . •

I discover no errors that call for) a reversal of this judgment. I recommend, therefore, fhat it be affirmed,, with costs.

As to the order granting to the plaintiff an extra allowance of costs, I am of the opinion- that it should be- reversed. There is nothing extraordinary or unusually difficult in this case —- nothing to bring it within the provisions of section 3253 of the Code "of Civil Procedure.

' Order granting extra allowance reversed. Judgment and order denying motion for new trial modified by striking from the judgment the amount of the extra allowance, and as so modified unanimously affirmed, with costs..  