
    John Van Tassel, Resp’t, v. The New York, Lake Erie & Western Railroad Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Evidence—Weight of.
    In an action against a railroad company to recover for injuries sustained by plaintiff, a brakeman, while in defendant’s employ, plaintiff testified that he was ordered to “brake” the only stock car taken rn the train at Gf., and as he stepped upon the brake step it gave way and he fell; defendant introduced its rules to show that they required its conductor to report the arrival and departure of its trains at each station, with a description of theyars there taken on or left off. The report of the conductor of the train which arrived at G. fifteen minutes before the departure of the train on which plaintiff was injured, showed that a sheep car No. 8007 was left there, the accuracy of the report was testified to by the conductor and flagman in whose handwriting it was. The report of the conductor of the latter ■train was introduced, from which it appeared that the only stock car taken on at G-. was No. 8007, but the baggage-master, in whose handwriting it was, and the conductor, refused to swear to its accuracy, or to the fact that the description of the car was made from personal observation of its number. Car No. 8007 had not nor required any brakestep. Held, that the jury was not bound to credit such report, its accuracy having been impeached by the testimony of the conductor and baggage-master.
    2. Same.
    Proof that a certain freight car arrived at a station fifteen minutes before the departure of another freight train, is not evidence that such car became a part of the latter train.
    3. NEGDIGENCE—CONTRIBUTORY.
    In such case, plaintiff was not guilty of contributory negligence, though he might have discovered the defective condition of the brakestep had he examined before attempting to use it; he was justified, from the fact that the car was at the time in actual use, in assuming that it was in fit condition and that defendant had performed its duty of keeping the car, with all its appliances, in proper repair.
    4. Same—Evidence—Objection—Collateeab matter.
    In such case a physician was called by defendant to show that plaintiff had a prior injury which might have resulted in his present condition, and testified as to the date of his consultation with plaintiff, and .that he was enabled to fix such date with certainty because he had made a record on the day it occurred. On cross-examination he was questioned under objection in respect to the entries of his visits to other patients. Held, that defendant having brought out the fact of the alleged record, could not urge its irrelevancy and prevent cross-examination concerning it.
    Appeal from a judgment for the plaintiff entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial. Action to recover for injuries alleged to have been, sustained by the plaintiff, a brakeman in defendant’s employ, byj reason of the defective condition of a brakestep, the use of which he claimed was essential to the operation of the brake attached to defendant’s car.
    
      Artemas B. Smith, for resp’t; Charles Steele, for app’lt.
   Bischoff, J.

That plaintiff sustained injuries of the character claimed by him, and that in consequence of such injuries his health and physical condition were greatly and permanently impaired, are facts which, upon the testimony of the physicians who were examined as witnesses on the trial, were left in no manner of doubt; the facts, also, relating to the accident, assuming it to have occurred as testified to by plaintiff, fully justified a finding of defendant’s negligence by the jury.

It appeared from plaintiff's testimony that he was a brakeman in the employ of defendant and attached as such to a train which, on August 22d, 1888, proceeded to take a stock, or freight car, laden with sheep, from Greycourt to Newburgh; that the brake of this car was constructed with a brakestep, which was located about eighteen inches below the roof of the car, and which was attached to the end of the car by iron braces; that the brakestaff passed through the step, attached to which was a “ dog” or “ catch ” which worked in connection with a “ ratchet ” wheel on the brakestaff; that the “ dog ’’ was worked with the brakeman’s foot, and that he had for that purpose to stand with one foot on the step while operating the brake, so that he could push the “dog” against the Vratchet” wheel after the brake was wound up, and thus hold it in position. It further appeared that the board, which formed the foot rest of the brakestep, had, from exposure to the elements, become defective in that it had sprung lengthwise through the middle, the -two parts, however, still adhering at, and a little below, the surface, so that the defective condition of the board could have been detected upon inspection from below, but was not apparent on its surface. It was a part of plaintiff’s duty to obey the instructions of the conductor of his train, and having been directed by the latter, at Greycourt, to-couple the car to the train, he proceeded to do so. The car had to be hauled some distance to the train by a “ pusher ” engine employed for that purpose, and having coupled the car to this engine, plaintiff mounted the roof of the car intending to unfasten the brake which, he says, he believed to be set at the-time. From the roof of the car he glanced down on the brake-step, noticed nothing unusual in the appearance of it, stepped upon the footrest which separated at the point where it had been weakened as hereinbefore mentioned, and the weight of his body caused the separated part of the board upon which it directly bore to break, whereby he was precipitated astraddle of the bumper of the engine, and in this manner sustained the injuries complained of.

It was defendant’s duty to maintain the brake and its appliances in a condition fit and suitable for the purposes of their use, Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Lansing v. N. Y. C. & H. R. R. R. Co., 49 id., 521; Besel v. N. Y. C. & H. R. R. R. Co., 70 id., 171; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 id., 240; Burke v. Witherbee et al., 98 id., 562; Pantzar v. The Tilly Foster Mining Co., 99 id., 368; Fredenburg v. N. C. R. R. Co., 114 id., 582; 24 St. Rep., 550, by the exercise of a reasonable degree of care and diligence to discover 'such defects as arise from the want of proper repair, Probst v. Delamater, 100 N. Y., 266; Fuller v. Jewett, 80 id., 46; Painton v. N. C. R. Co., 83 id., 7; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id., 546; nor could it escape responsibility for the non-performance, or the negligent performance, of this duty, by delegating it to others. Benzing v. Steinway, 101 N. Y., 547; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id., 375; 12 St. Rep., 9; Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y., 557; 34 St. Rep., 214.

A railroad company, however, may perform its duty as master in such respect by adopting and promulgating a system of rules- and regulations intended for the inspection and repairing of its cars, engines, switches, etc., to guard against accidents, Byrnes v. N. Y., L. E. & W. R. R. Co., 113 N. Y., 251; 22 St. Rep., 936; McGovern v. V. R. R. Co., 123 N. Y., 280; 33 St. Rep., 416; Ford v. The L. S. & M. S. R. R. Co., 124 N. Y., 493 ; 36 St. Rep., 494; Corcoran v. D., L. & W. R. R. Co., 126 N. Y., 673; 38 St. Rep., 251, the employment of competent servants to make these inspections and repairs, and the exercise of such. a supervision over its employees as may be reasonably necessary to enforce the-observance of its rules and regulations. Whittaker v. D. & H. C. Co., 126 N. Y., 544; 38 St. Rep., 523. Whether or not the rules promulgated are reasonably sufficient to insure the safety of its servants, if observed, and whether or not a reasonably sufficient supervision was exercised to enforce the observance of the rules, ■are questions of fact which must be determined by the jury from the evidence. Abel v. D. & H. C. Co., 128 N. Y., 662; 40 St. Rep., 626.

On the trial defendant’s efforts were aimed to show that the stock car which plaintiff coupled to the engine at'Greycourt was one known as and marked “N. Y., P. & 0., 8007,” and had, but about fifteen minutes before, been brought to Greycourt by a train from Jersey City; that car “N. Y., P. & O., 8007 ” was not provided with a brakes tep; that the brake thereof was of an essentially different construction, and that a brakes tep thereon was unnecessary. Incidentally it appeared from the evidence for the defense that the defendant maintained a station at Jersey City, and another at Newburgh, where such of its cars as came there were •inspected, and, when necessary, repaired, but as the jury have discredited defendant’s claim that the car which plaintiff coupled to ■the engine was the car known as “ N. Y. P. & O., 8007,” it is, in the absence of evidence tending to show that all of defendant’s cars, in the prosecution of its business, necessarily arrived at Jersey City or Newburgh at frequent intervals, thus affording opportunity for inspection and repair, absurd to speak of- these two stations as a “system.”

The particular car in the use of the brake of which, the jury say, plaintiff was injured, was at Greycourt. How long it had been there, and from whence it came, or that it ever had been, or if so, how recently, at either Jersey City or Newburgh, does not ■appear. It was not shown that there was a repair station at Grey-court, or that any person was there employed for repairing purposes, or that the car was ever inspected or examined there or-anywhere else by anybody before the accident, to ascertain if it ■needed repair. It is apparent that with the rejection of defendant’s claim, that the car coupled to the engine was car “ N. Y., P. ■'& O., 8007,” all evidence of efforts at Jersey City and Newburgh to avoid accidents arising from the want of repair became at once irrelevant, and would not fit to the case of a car which was not shown ever to have been at either of those places at any time before the accident. Hence the jury consistently, also, found that defendant had, with reference to the car coupled to the engine by -the plaintiff, omitted to use reasonable precaution to avoid accident from the want of repair.

Appellant urges that there is no evidence from which the jury were authorized to infer that defendant was negligent, -and counsel cites De Graff v. N. Y. C. & H. R. R. Co., 76 N. Y., 128, which is to the effect that the breaking of a piece of machinery may reasonably lead to the conclusion that, the "break was due to a defect therein, but that the fact merely that the machinery was defective does not warrant an assumption that the master was negligent in not discovering the defect Unquestionably the master may not be held responsible without proof of negligence on his part, and his negligence will never be presumed. Dobbins v. Brown, 119 N. Y., 188; 28 St. Rep., 957. But the fact of his negligence may appear from the circumstances of the accident, or the nature of the defect. Iri die ' De Graff case it appeared that plaintiff was a brakeman, and that while applying the brake the chain broke, whereby he was thrown from the car and injured, but the jury were not informed of the nature of the defect in the chain, or what it was that caused the chain to part asunder. In the-case at bar, however, plaintiff’s testimony shows that the cause of the break in the foot-rest of the brake-step was a crack or opening running lengthwise through the middle, and extending through the thickness of the board to very nearly the surface - that the crack must have been plainly visible from below; and that it was not of recent origin, because the upper portion of the broken edges, where the board parted in two, was fresh, and had the appearance of a recent break, while the remaining portion of the same edges was blackened and weather-beaten, indicating that it had been exposed to the elements for some time past. The failure to discover and repair this cause of the break is the negligence complained of, Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y., 462, and the circumstances of the case under consideration are no less convincing in that respect than were those in Jones v. N. Y. C. & H. R. R. R. Co,, 28 Hun, 364 ; affirmed, 92 N. Y., 628, where it was held that the appearance of the iron rung of a ladder used in connection with a freight car, and from which plaintiff’s intestate had fallen, bent and dented, with the broken ends partly bright, as though recent, and partly rusty, as though old, justified the jury in assuming that the defect had existed for a sufficient length of time to have enabled defendant to discover and repair it, had the defendant exercised reasonable diligence to ascertain the condition of the ladder.

Appellant further contends that there was affirmative evidence that the brakestep was reasonably safe, from plaintiff’s admission that it might have been used by him, or others, a hundred times without causing it to break, and that to supply one not absolutely but reasonably safe, only, was the extent of defendant’s duty. Hickey v. Taaffe, 105 N. Y., 26; 6 St. Rep., 426; Stringham v. Hilton, 111 N. Y., 188; 19 St. Rep., 621. We understand this admission to mean no more than that it was the witness’ opinion that in the use of the step the weight of the body did not uniformly bear upon the weakest point of the foot rest, and that it was for that reason not impossible to use the step a great many times without causing a break at that point, and so evidently the-jury, who did not share this opinion, interpreted it Bearing in miud, therefore, that the reasonable safety of an appliance must be-determined with reference to its use, it was still a question for the jury whether, or not, in view of the fact that the defective condition of the brakestep might cause it to break at any time when in use, it was reasonably safe, and with the jury’s finding that it was not we cannot interfere.

Neither can it be successfully urged that, in entering upon his employment as brakeman for the defendant, the plaintiff accepted as incidental to the service the risk of injuries resulting from defendant’s neglect to exercise reasonable diligence to ascertain and repair defects in appliances used by plaintiff in the performance of his duties. The risks of injury which the servant assumes are those which are obvious and within his reasonable apprehension, Gibson v. Erie Railway Co., 68 N. Y., 449; Shaw v. Sheldon, 103 id., 667; 3 St. Rep., 679; Hickey v. Taaffe, 105 N. Y., 26 ; 6 St. Rep., 426; Appel v. B., N. Y. & P. R. R. Co., 111 N. Y., 550; 20 St. Rep., 90; McGovern v. Central Vermont R. R. Co., 123 N. Y., 280; 33 St. Rep., 416, not such as are the result of the nonperformance, or the negligent performance, of a duty owing from the master, Crispin v. Babbitt, 81 N. Y., 516; Pantzar v. The Tilly Foster Mining Co., 99 id., 368, and the master will not be permitted to avail himself of the servant's assent to assume all obvious and incidental risks of injury in the service until he has himself discharged the duty of using and maintaining all reasonable precaution to avoid injury to the servant Dana v. The N. Y. C. & H. R. R. R. Co., 92 N. Y., 639; Hudson v. The Ocean S. S. Co., 110 id., 625 ; 16 St. Rep., 416.

Plaintiff was not guilty of contributory negligence. Though he might have discovered the defective condition of the brakestep had he examined before attempting to use it, he was justified, from the fact that the car which he was directed to couple was at the time in actual use, in assuming that it was in fit condition and that the defendant had performed its duty of keeping the car, with all its appliances, in proper repair. Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y, 375; 12 St. Rep.; 9. At any rate, the fact that plaintiff was directed by his superior to couple the car made the question of his contributory negligence, because of his omission to examine the brakestep before attempting its use, one to be determined by the jury upon all the surrounding circumstances. Kain v. Smith, 89 N. Y., 375.

Appellant’s counsel further urges as ground for reversal that the verdict is against the evidence, and the weight of the evidence, because it was conclusively shown that the car which plaintiff coupled to the train at Greycourt was the car marked and known as “N. Y, P. & O. 8007,” which was not provided with a brakestep, from which it follows that the accident narzated by the -plaintiff did not occur.

It appeared in evidence for the defense, without contradiction, that the defendant’s zules required its conductors to report the .arrival and departure of its trains at each station, with a description of the several cars there taken on or left, and that the conductor of the train by which car “ N. Y, P. & 0. 8007” arrived at Greycourt from Jersey City had made such a report. The accuracy of the report was" testified to by Wandle, the conductor, and Quackenbush, the flagman, in whose bandwriting it was made,-and the evidence'may be accepted as conclusive of the .arrival of car “N. Y. P., & 0. 8007” at Greycourt on the day of the accident and about fifteen minutes before the departurc of the train to which plaintiff was attached from Grey-court to Newburgh. It is equally conclusive that car “ N Y., P. & 0. 8007 ” was laden with sheep, and that the construction of its, brake was such as to make a brakestep superfluous and that it was not provided with any.

It does not follow from such facts, however, that car “ N. Y., P. & 0. 8007 ” was the car which plaintiff coupled to and which was taken by the train to which he was attached from Greycourt to Newburgh; and it is manifest that if plaintiff’s story that the last mentioned car was provided with a brakestep is correct, that it could not have been the car “ N. Y., P. & O. 8007.” Plaintiff’s story is not inherently improbable. We are not authorized to assume that the car load of sheep was not transferred at Grey-court from car “ N. Y., P. & O. 8007 ” to another, or that there were not two or more cars laden with sheep at Greycourt, or that the car which was dispatched by plaintiff’s train had not arrived at Greycourt by a train other than that of which Wandle was the conductor. To prove the identity of the car coupled to plaintiff’s train with car “ N. Y. P. & O. 8007 ” defendant offered in evidence the report of King, the conductor of the train running from Greycourt to Newburgh, which was in the handwriting of William H. Van Tassel, plaintiff’s brother, and the baggage-master on the train. From this last report it appears that the only stock car taken from Greycourt to Newburgh was car “N. Y., P. & O., 8007,” but both King and Wm. H. Van Tassel refused to swear to its accuracy, or to the fact that the description of the caiXwas made from their personal observation of its number or initials, and whatever benefit the defendant might otherwise have derived from the presumption of the performance of duty, Barlcer et al., admrs. v. N. Y. C. R. R. Co., 24 N. Y., 599; The Oregon S. Co. v. Otis, 100 id., 446; Turner v. Kouwenhoven, id., 115; Coppins v. N. Y. C. &. H. R. R. R. Co., 122 id., 557; 34 St. Rep., 214; Greenleaf on Evidence, vol. 1, § 40, was overcome by their admission that the report may have been made up from the way bill, or the trainbook, and that the entries in the trainbook and reports were frequently made by them upon information received from others and not upon their personal knowledge of their accuracy. Thus the success of the defense hinged entirely upon the degree of credit which the jury saw fit to attach to the last mentioned report, and with its accuracy impeached by the admissions of King and Wm. H. Van Tassel, we cannot say that the jury were bound to credit it..

To contradict plaintiff's statement that on August 22, 1888, he fell from a stock car which he had just coupled to the “pusher” ■engine, defendant called John E. Tibbitts, but a careful scrutiny of the latter’s testimony must demonstrate that it is not in conflict with that of the plaintiff concerning the happening of the accident. Tibbitts merely states, with reference to the accident, that on one occasion, which he would not say was on the 22nd of August, the day plaintiff says he was injured, he was at Grey-court and saw a person other than the plaintiff couple a stock- car to the “ pusher ” engine, that all this time witness and the plaintiff were standing near the train on which plaintiff was employed as brakeman, and that the stock car was coupled to the train by plaintiff, who on that occasion did not meet with any accident, and that he, the witness, did not see plaintiff meet with an accident on any other occasion. It is not at all unlikely that at some time Tibbitts may have been at Greycourt and witnessed the coupling of a stock car as he described, but unless it also appears that this was the coupling to which plaintiff referred, the two statements cannot be said to be in conflict with, or contradictory of each other.

Next, defendant called for the purpose of contradicting plaintiff one Charles W. Jones, its train dispatcher at Newburgh, who testified that in September, 1888, sometime after the accident, plaintiff applied to him tobe assigned to less arduous work, giving as a reason for his application that he had sustained an injury some time previous, while lifting a barrel at Central Valley; but it may well be that the jury, upon plaintiff’s denial of ever having attributed his injuries to the cause mentioned, refused to discredit him upon such hazardous testimony as the witness’ accurate recollection of the particulars of a casual conversation.

For the purposes of still further contradicting the plaintiff, defendant called James L. Lente, a physician, who testified that about sixteen months before the alleged accident plaintiff hadi called upon and consulted him professionally, that on that occasion he had inspected plaintiff’s person and noticed the presence of a rupture in the groin, as well as other symptoms of disease;! which, with reasonable certainly, would eventually lead to the* physical condition in which plaintiff was shown to be on the trial, and that he had recorded the fact of the consultation, with the result of his inspection, on the day it was made, in a book kept, by him and in which were recorded his consultations with patients, in chronological order. But Dr. Lente’s testimony was itself impeached by that of Daniel T. Ames, a witness for the plaintiff, who, upon the book being exhibited to him, testified to his opinion as an expert in handwriting that all of the entries in the book, consisting of about thirty-four pages, were made on one and the same occasion and not on the several dates on which the entries respectively purported to have been made; that the handwriting indicated that it was all made under the same conditions and surroundings, and that it was barely possible for any person to write thus on two or more distinct occasions.

For all of the reasons above mentioned, we are of the opinion that the several motions to dismiss the complaint and the motion for a new trial on the minutes were properly denied. The case to which counsel for defendant refers us, Hotis v. N. Y. C. & H. R. R. R. Co., 25 St. Rep., 525, differs from the present in that in the Hotis case the evidence of the identity of the car upon which Elaintiff claimed to have been injured with the one shown to ave been in good order was complete, and the preponderance of the evidence in favor of the identity of the cars. Hence, there the verdict for the plaintiff was properly set aside.

The exceptions urged by counsel for appellant to the admission of the testimony of Ames, an expert in handwriting, to the effect that the alleged record of Dr. Lente's consultation with plaintiff, and his inspection of plaintiff’s person, were not made when Dr. Lente said they were, and when the record itself purported to have been made, have been examined by us. These exceptions were not based upon any objection to Ames’ competency as an expert, or the competency of the opinions of experts in handwriting concerning the subject matter of the inquiry, but wholly upon the objection that as Dr. Lente, when examined as a witness for the defendant, had only been asked concerning the entry in the record of the fact of plaintiff’s visit, his testimony on cross-examination, with respect to the entries of the visits of other patients, was concerning collateral matter and conclusive upon the plaintiff under the rule laid down in Gandolfo v. Appleton, 40 N. Y., 533, that a party may not contradict a witness concerning collateral matter brought out by the party seeking to contradict. We do not, however, agree with appellant’s counsel that the testimony ■concerning the entries of consultations by Dr. Lente with persons other than plaintiff was of collateral matter. On his direct examination Dr. Lente had testified that his consultation with plaintiff occurred on April 24, 1887, and that he was enabled to fix the date with certainty because he had made a record of the consultation on the day it occurred. Having itself brought out the fact of this alleged record of Dr. Lente’s consultation with plaintiff, defendant could not thereafter urge its immateriality or irrelevancy, and prevent cross-examination concerning it On cross-examination it appeared that Dr. Lente claimed to have made the record of his consultation with plaintiff in a book regularly kept for such purposes, and in which he entered the fact of Ms consultations with patients in chronological order, each on the ■day of its occurrence. Ames’ testimony, therefore, that the entries ■concerning consultations purporting to have taken place before the one with plaintiff and those purporting to have been made on subsequent dates were in fact all made on one and the same occasion, had the effect of contradicting Dr. Lente’s statement, on Ms direct examination, that he made the entry concerning his consultation with plaintiff on April 24, 1887, and so tended to disprove the alleged consultation altogether, or at least the alleged substance of it, as to which Dr. Lente had testified that he relied for his recollection to some extent upon the record. Kouba v. Horacek, 24 St. Rep., 990, and mem. in 27 Abb. N. C., 375.

Hone of the other exceptions wMch appear in the case require us to reverse the judgment

Judgment affirmed, with costs.

Daly, Oh. J., concurs.  