
    Eugene Sisco, Resp’t, v. Lehigh and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.
    
    Master and servant—Appliances.
    
      WIiere no necessity exists for the projecting arm of a mail crane to come within 12 inches of the side of a car along which hrakemen must climb, such nearness of the structure is proof of negligence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      John J. Beattie, for app’lt; John W. Lyon, for resp’t.
   Pratt, J.

Plaintiff was a brakeman with defendant, and while climbing up the side of a freight car, in discharge of his duty, was hit and injured by the arm of a mail crane which projected within 12 inches of the car. The structure had been erected about four weeks, and plaintiff had passed it three times before the accident. He had received a notice of its erection. The jury were instructed that, in order to find a verdict for plaintiff, they must find that the appliance was unsafe, insecure, or dangerous, and that reasonable care by defendant would have discovered the danger. The court refused to charge that the nearness of the structure to the track was no evidence of negligence. -We aré of opinion that there was nothing in these instructions of which defendant can complain. The case is bare of any evidence that any necessity existed for the projecting arm to come within 12 inches of the side of a car along which brakemen must climb. So far as appears, the arm might have been twice as far from the car, and yet have performed its work equally well. If that were so, the negligence of defendant seems clear. We do not find that plaintiff was negligent. Judgment affirmed, with costs.  