
    Andrew W. McCann, Respondent, v. Interurban Street Railway Company, Appellant.
    First Department,
    January 25, 1907.
    Negligence — injury to motorman "by “ plow ” of car catching in slot rail.
    A recovery for an injury to a motorman from the sudden stopping of his car cannot be sustained on the theory that the accident was caused by the negligence of the defendant in failing to furnish safe appliances where the car'■ was stopped by the “plow,” which connected the car with the underground cable,- catching in the slot rail, due to the fact that the rail had closed up so that the slot for a short distance was but one-half inch in width instead of the usual three-quarters. The defendant cannot be charged with negligence in failing to anticipate that" such an accident might occur, even if it had notice of the defect in the rail.
    
      Appeal by the defendant, the Interurban Street Railway Company, from a-judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of March, 1906, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 2d day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      John V. Bouvier, Jr., for the appellant.
    
      Oscar A. Campbell, for the respondent.
   Lambert, J.:

The plaintiff was injured in an accident upon the defendant’s car on the 15tli day of December, 1902. He was employed as a'motorman, and on the day in question was sent out on a light four-wheeled car. The car had been newly equipped with a plow, a device which passes through the slot rail in' the center of the defendant’s tracks, transmitting the electric current from the cable below to the motor on the car. Ho defect is suggested in this- - plow; it is stated ■ only that it is thicker at the point where it passes through the slot rail than ' an old one. The accident occurred at or near the intersection of. Horth Moore street and West Broadway, in the borough of Manhattan, and the negligence alleged is a failure on the part of the defendant to provide suitable, sufficient and safe appliances, place to work, roadbed and connections thereto, and track, and that the defendant had notice of these defects.

The plaintiff’s story (and he does not call the conductor of the Car or any other person who is alleged to' have seen the accident) is to the effect that on the morning of the day mentioned, at six-fifty, he was approaching the street intersection, running down grade with the current shut off; that'he saw a fire marker, and that under the rulés of the company it was his duty to bring his car to a full stop; that he was applying his brake, and had his weight upon his right arm, and that while endeavoring to bring his car to a standstill, the car stopped suddenly, throwing him against .the gate, resulting in the injuries for which he is seeking to recover. He made no examination of his car or of the track at the time of the accident. He says he stood there with his car for a .little time-, and then went on his way,..running the car until about four o’clock in the afternoon; that on his second trip back, at about nine-thirty, he got .off his car at the point of the accident to find out the cause, and •discovered that the slot rail had closed up to such an extent that for a distance of two' feet and a half the opening was only about half an inch, whereas, at other points it was about three-quarters of an inch. ■ These measurements do not appear to be very .accurate. He -says that at the narrow place he could only pass one finger through the slot, while at the other points he could insert two fingers, but he does not say liow much room there was outside of the single finger, or how tightly the two fingers were pressed. He . says, that, the. plow was aboiit half an . inch in thickness where, it passed through the slot, and that if this x had been a heavy car it would have passed through without a jar; and while he must have started his car from a standstill, on resuming his journey, he makes no mention of experiencing any difficulty in starting the car or in operating it over this same place during the day. . According to his own estimates, the space was about half an inch wide,- and the plow was likewise half an inch wide, and there,. is -the intimation that there would have been no difficulty except that, the. defendant had equipped the. car with'a new plow.. The plaintiff’s own testimony' indicates clearly that he had no intimation of the cause of the trouble at the time of the accident, and he did not then look to the condition of the tracks or the groove"rail,' but when passing along, on his second trip "at nine-thirty he got off the car and .found this alleged defect, yrliich, he testified, over the defendant’s objection and exception, was in the same condition as at the time of the accident, although he was shown not to have known anything about its condition at that time. . •

Where is the actionable negligence % What man of ordinary prudence and care,, looking upon this alleged defect, would anticipate, the accident, or one of a similar character ? Actionable negligence is not predicated upon what' we might see. could • "have been done to prevent the accident, after the accident had happened, but upon the degree of care which ordinarily prudent men, looking at the situation, before the accident had happened, would' say was1 likely, in the exercise of ordinaiy care, to occur. And, in the light of this evidence, what man of ordinary care, knowing the equipment of these cars, and looking at this alleged defect, would anticipate that it would result in causing a sudden stopping of a car and producing injury ? The plaintiff had had twenty-five years’ experience in running cars, and several years ás a motorman; hut it does not appear to have suggested itself to his mind that the slot rails were out of order until several hours after the accident, and then he was obligéd to leave his car to discover the defect; and the defect, if it in fact existed, was so slight that the plaintiff tells us it would not have jarred a heavy car, while his own car appears to have been operated through the same place all during the day, and to have been started without difficulty (for none is suggested) from the very point where it came to a sudden standstill. Assuming, as we may, in the light of the verdict of the jury, that this accident resulted from .the closing up of the slot, the facts do not justify the conclusion of negligence on the part of the defendant. If the slot had been one-sixteenth of an inch wider than it. was, or if the plow which was in use had- been worn slightly, an accident such as is described could not have happened, and to say that the defendant owed a degree of care which should have discovered and remedied so slight a defect — that it should, in the exercise of reasonable care, have anticipated that the defect would result in this or a similar accident —- is carrying the doctrine of negligence to the point of absurdity.

It is true, of course, that there was some very loose testimony on the part of an ex-employee, to the effect that he had, while employed as a starter, with some duty to report defects, been told by an inspector some days before the accident, and again on the morning of the accident, that there was a defect in the slot rail in the vicinity where this accident occurred. But the person who is alleged to have made this report was not produced, nor was the point definitely fixed, and at most it could only go to the question of notice. As we have seen, if the situation had been called, to the attention of the defendant, _ there was nothing from which reasonable minded men would have been led to believe that the accident described in the testimony would result. Indeed, if the plaintiff himself, with all his experience, had seen the slot, as it may b¿ assumed to have been at the moment of the accident, is it probable he would have anticipated that it would impede the funning of tlie car and cause it to stop suddenly ? He knew, in a general way, that the plow required about half añ inch of space; he would have seen that the slot Was about half an inch wide, and .knowing that cars,had operated Over it the day before,, he would sóareely feel that the company was negligent in not opening the slot to the full width, as it was found in other places. And if the plaintiff would not regard it as negligent before the happening of the accident, he is in no better position after the accident has happened. It is' reasonable care which the law demands as between the master and, servant and because there is no evidence in this case to show that the defendant had failed to exercise that reasonable care -in its -equipment, construction, and maintenance, there was no question for the' jury, and it was error to permit them to speculate upon the question.

The judgment and order appealed from should be reversed ánd a neW trial granted, with costs- to appellant to abide the event..

" Ingeaham and McLaughlin,, JJ., concurretl; Pattebson, P. J,, and Houghton, ' J,, concurred in result.

Judgment and order reversed, new trial ordered,, costs to appellant' to abide event..- Order filed.  