
    Edward Arnold, App’lt, v. The D. & H. Canal Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    Negligence — Railroad — When not liable fob injury to employe CAUSED BY BROKEN DRAW HEAD.
    The plaintiff, a yardman in defendant’s employ, whose duty it was to take out defective cars from arriving trains, was injured in attempting to couple two cars in the yard, one of which had a broken drawhead. Held, that it was no ground of liability of the company that the drawhead was broken, and the cars could not be coupled in the ordinary way, as plaintiff took the necessary risks of his employment.
    Appeal from a judgment of .the supreme court, general term, third department, affirming a judgment in favor of defendant, entered after a trial at the circuit where the plaintiff was nonsuited.
    
      J. H. Clute, for app’lt; Edwin Young, for resp’t
    
      
       Affirming 16 N. Y. State Rep., 310.
    
   Finch, J.

There was no evidence that the defendant company failed in the performance of any duty which it owed to its servvants. The plaintiff was injured in attempting to couple two cars in the Schenectady yard, one of which had a broken drawhead, and the negligence averred is the presence of that defect. ■ But it is no ground of liability of the company that the drawhead was broken, and the cars could not be coupled in the ordinary way, for the duty of the plaintiff was to handle defective as well as uninjured cars, and aid in taking the former out of the trains and placing them upon the track where they could be repaired. McCosker v. Long Island R. R. Co., 84 N. Y., 79. He took the necessary risks of his employment. On the arrival of every train in the yard, there were two inspectors whose duty it was to examine the cars' and detect any injury or defect, .and the rule of the company required such cars to bé taken out of the train and placed upon the cripple track for repairs. The plaintiff was one of the servants employed in that work. The coupling was directed to be done in order that the disabled car might be set aside for repairs. Whether the plaintiff knew that fact or not is immaterial.

The defect was obvious and might easily have been seen and the plaintiff had no right to assume that the couplings were perfect. One of the purposes of his employment was to handle and remove cars which were disabled, and if he did not know the condition of the one in question, he was bound to assume that it might be disabled and govern his action accordingly. It is in that respect that this case differs essentially from Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y., 398 ; 26 N. Y. State Rep., 767, recently decided by the second division-of this court and pressed upon us as a precedent. In that case the cars were being coupled for the purpose of proceeding on their journey. The plaintiff was required in the night time and with the aid of a lantern to make the coupling and found a broken draw-head in seeking to use which his arm was crushed between the dead-woods. The case was so close upon its facts that the reversal was by a bare majority of the court, but it stands upon the distinct ground, not at all applicable to the present case, that the master had failed in its duty of inspection and repair and the servant had a right to assume that the cars were perfect and act on that assumption.

Precisely the contrary is the fact here. There had been inspection, the coupling was for the purpose of repairs, and the servant had no right to assume that the ears were perfect and act on that assumption. The rule and custom of the business in the yard was to chain up or prop up a defective draw-head which had fallen below its proper level in order to make the couplings meet. That was a detail of the servants’ work in the yard and not the master’s duty to the servants. The neglect of that precaution, if not chargeable, in some degree to the plaintiff himself, was at least the neglect of his co-servants and not a failure of duty on the part of the master. The case was, therefore, correctly decided.

The judgment should be affirmed, with costs.

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