
    Frank A. Palmer, Resp’t, v. The President, Managers and Company of the Delaware & Hudson Canal Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Negligence—Railroad—Degree oe skill and vigilance required from—Defective spindle in draw-bar.
    A railroad is bound to use a high degree of skill and vigilance to guard, against accidents which may be attended with injurious consequences to its passengers, and it is its duty in the preparation of its appliances, such as the spindle of a draw-bar used to connect the cars, to apply the known tests to ascertain whether it was in all respects fit for the purpose it was intended to serve; and if in consequence of the failure to do so the defect was not discovered the railroad is liable.
    2. Same.
    Whether the system and manner of execution of examination of machinery, etc., are all that may be required of the carrier cannot be measured, by any rule of law to be applied by the court, but is a question of fact for the jury to determine upon proper instruction relating to the degree of care imposed upon the company.
    Appeal from judgment of the general term of the supreme court in the third judicial department, affirming judgment entered on a verdict in favor of the plaintiff.
    
      Edwin Young, for app’lt; A. J. Parlcer, Jr., for resp’t
    
      
       Affirming 11 N. Y. State Rep., 872.
    
   Bradley, J.

On September 17, 1885, while going at the rate of twenty or twenty-five miles per hour, the locomotive engine drawing a train upon the defendant’s railroad was severed from the cars, the speed of which suddenly slacked by the operation of the air brakes; and the plaintiff being a passenger in one of the cars was struck over his eye and injured by the end (said to be metallic) of the bell rope which being attached to the engine was rapidly drawn through the cars. The plaintiff had the burden of proving a state of facts from which it might be inferred that his injury was occasioned by the negligence of the defendant, and for that purpose it was made to appear that the severance of the engine from the train was caused by the breaking of the spindle of the draw bar on the forward end of the car next to the engine. The purpose of this bar, by means of the draw-head or coupling apparatus forming part of it, was to connect the cars together as a train and the one next to the engine to it, and when it broke there was nothing to support the connection. There was evidence given on the trial sufficient to justify the inference of negligence of the defendant Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y., 534; Edgerton v. N. Y. & H. R. R. R. Co., 39 id., 227; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id., 562; Breen v. N. Y. C. & H. R. R. R. Co., 109 id., 297; 14 N. Y. State Rep., 835. With a view to relief against the imputation of negligence, it was proved that the spindle, when on the ■car, was not accessible to observation or inspection, and the defendant gave evidence tending to prove that, for the purpose of its examination, it was necessary to put the car into the shop and take out the draw-bar, which it was not accustomed to do very frequently, and that the spindles and draw-heads of this car were renewed in 1883. And the reason given for not deeming it necessary to overhaul and examine this apparatus more frequently was that it was made of the best wrought iron, and that its vibration and the strain upon it in its use are not such as to require it; that ,so far as appears by the evidence, the spindle of the draw-head of .a car had not been known before to break by the use made of it in running trains; and that while the period of availability of a •car for use is ordinarily twenty-five years, this spindle had been in the car only two years when it gave way. If the defendant was required to exercise ordinary care only, in maintaining in a condition of safety its appliances used in running its trains, it would not be chargeable, upon the facts proved, with liability for the plaintiff’s injury.

But while a railroad company is not an insurer of the safety of its passengers, it is bound to use a high degree of skill and vigilance to guard against accidents which may be attended with injurious consequences to them. This duty is not discharged without the utmost care and diligence to secure the safety of its passengers. And this vigilance is to be exercised by the company to see that its road and appliances used in operating it are and remain in good condition and free from defects; and a latent defect which will relieve it from responsibility is such only as no reasonable degree of human skill and foresight could guard against. Hegeman v. Western R. R. Co., 13 N. Y., 9; Bowen v. N. Y. C. R. R. Co., 18 id., 408; Brown v. N. Y. R. R. Co., 34 id., 404; Caldwell v. N. J. Steamboat Co., 47 id., 282; Penn. Co. v. Roy, 102 U. S., 451.

This measure of responsibility is deemed essential to the proper-protection of passengers, who must necessarily rely wholly upon the precautionary care and diligence of the carrier so far as their-safety depends upon the condition of the road and the means provided for their conveyance. The evidence warranted the conclusion that the broken appliance, which in the present case was the ■cause of the injury complained of, was defective, and that if it did not become so by its use upon the car, it was so when put on it. The witnesses did not agree about its apparent condition at the time it broke. But evidence on the part of the plaintiff tended to prove that at the point where it severed there was a flaw in the spindle three-fourths of an inch in depth. Such a flaw would, extend nearly half way through the spindle, which was a round bar of iron one inch and five-eighths of an inch in diameter. This necessarily weakened it, and permitted the inference that such imperfect condition was the cause of its breakage. Assuming that this flaw existed, it is not unreasonable to suppose that it may have been in the iron when it was put on the car, and that although the car had afterwards been in use on "the road for two years, the spindle may not .have been subjected to the peculiar strain which severed it until the time in question. When it was made to be put upon the car, the duty was to apply the known tests to ascertain whether it was in all respects fit for the purpose it was intended to serve; and if in consequence of the failure to do so the defect was not discovered and the accident occurred, the defendant was responsible. That question was considered in the liegeman and Caldwell cases before cited. There was some evidence tending to prove that tests might be successfully applied to discover a flaw in a wrought iron bar; that while this could be done when it was made, it would afterwards be more difficult to do it satisfactorily to disclose a flaw concealed within it and not coming to the surface without impairing the bar in other respects. There was evidence warranting the inference that the flaw in this one had no surface covering. It did not necessarily appear by the evidence whether this was a flaw produced in the process of manufacture of the spindle or a fracture resulting from its use on the car.

In view of the situation the trial court submitted to the jury the question whether the defendant had failed to perform its duty in not taking- the bar out of the car, and by proper means inspecting it with a view to ascertain whether it was or remained in suitable condition for use, and to this part of the charge the defendant’s counsel excepted. It may be assumed for the purposes of the question that no inspection had been made of this spindle during the two years it had remained on the car, and that the removal and examination of it were not within the system of inspection adopted by the defendant. The view which a carrier of passengers may have of what is or is not essential by way of inspection of its road and appliances, is not necessarily conclusive, although entitled to consideration upon the inquiry whether the system is adequate to the demand of duty upon the vigilance of the company. The same degree of care and watchfulness are not alike requisite to all of the various portions of the machinery and appliances. The apparent necessity for frequency of examination, is somewhat dependent upon the liability to impairment and the-consequences which may be apprehended as the result of defective condition. But whether the system and the manner of its execution are all that may be required of the carrier cannot be measured by any rule of law to be applied by the court It must, in view of the circumstances appearing by the evidence, be one of fact for the jury to determine upon proper instructions relating to the degree of care imposed upon the company; and while it is true that the question of fact so presented is somewhat speculative in the sense that it is not measured by any definite rule, it must, nevertheless, become a matter of judgment to be expressed by the jury, and founded upon the evidence.

They have found that the defendant did not use that care which it should have exercised to ascertain that the draw bar was not in suitable condition; and that if it had performed its duty in that respect the accident would not have occurred. It cannot be said that the continuance of the connection with the engine or With each other of the cars of a train is not essential to the safety of passengers or that serious injury may not he within apprehension as the result of such disconnection while in rapid motion. It is, however, urged that the earlier rule adopted by the court as to the degree of vigilance required of a railroad company in the conveyance of passengers is not sustained by the later adjudications, and reference is made to some cases. It may be observed that those - so cited do not relate to the machinery or the appliances and apparatus which constitute and sustain the operative means of conveyance and transportation, but to other structures provided by the carrier and the manner of their construction and to which a less degree of care is applicable. Such are the cases of Hayes v. R. R. Co., 97 N. Y., 259; Lafflin v. R. R. Co., 106 id., 136; 8 N. Y. State Rep., 596; Kelly v. R. R. Co., 109 N. Y., 44; 14 N. Y. State Rep., 36; Palmer v. Penna. Co., 111 N. Y., 488; 19 N. Y. State Rep., 493; Kelly v. Ry. Co., 112 N. Y., 443; 21 N. Y. State Rep., 507. The general doctrine of the earlier cases in this state on the subject does not seem to have been modified by the later ones, but has quite uniformly been approved so far as applicable. Coddington v. R. R. Co., 102 N. Y., 66.

The evidence was such as to present a question of fact for the jury and to require its submission to them. We think there was no error in the portion of the charge above mentioned; and that none of the exceptions were well taken.

The judgment should be affirmed.

All concur, except Potter, J., not sitting.  