
    William Bennett, App’lt, v. Greenwich and Johnsonville Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 12, 1895.)
    
    Master and servant—Appliances—Question op pact.
    It is a question for the jury whether a railroad company, which uses cars with drawheads of different heights, fails, in not providing crooked links suitable to the coupling of such cars, to furnish reasonably safe appliances.
    Appeal from a judgment of nonsuit..
    
      
      Frank B. Hull (T. F. Hamilton, of counsel), for app’lt; Gibson & Van Kirk (C.C. Van Kirk, of counsel), for resp’t.
   Mayham, P. J.

Theplaintiff was injured while attempting to couple cars on the defendant’s railroad. The proof shows that the cars, in attempting to couple which he was injured, were cars from other railroads than that of the defendant’s ; that there was a difference in the height of the drawheads, in which the coupling link was to be inserted, of about four inches; that the plaintiff was ordered by the conductor of the train to couple the cars, and when the cars were within four feet of each other, one' moving slowly and the other stationary, the plaintiff discovered the difference in the height of the drawheads, and that there was no crooked link provided for such conditions; that the link was in the lower draw-head, and at about the time of the discovery of the difference in the height of the bumpers the conductor directed him to change the link from the lower to the higher drawhead, but he was unable to do so, by reason of the near proximity of the cars to each other; that in his attempt either to couple the cars in the condition in which they were, or to change the link from the lower to the upper drawhead, the plaintiff’s arm caught between the bumpers, and was so injured as to necessitate amputation. The evidence discloses that the defendant kept no car inspector, and had no printed, written, or other rules for the government of its employes, or the management or equipment of its cars. The proof showed that it was customary for railroads to carry crooked links with which to couple cars of different height. There was also evidence tending to show that a crooked link was safe, and in many cases necessary, in coupling cars of different height of drawheads. The evidence also tended to show that other railroad companies generally, if not universally, provided inspectors for cars, and rules for the government of their trains. To meet that contention, it was shown by the defendant that its railroad was but a single track, extending but a few miles, with few cars and small capital, and that the strictness of management and completeness of equipment was not required of it that would be exacted for more important and extensive railroad systems. At the conclusion of the evidence the judge nonsuited the plaintiff, mainly, as appears, upon the' ground that the defendant had not been proved to have been guilty of negligence which caused the injury. Nor was the plaintiff chargeable with contributory negligence, but the accident was the result of the dangerous character of the plaintiff’s employment, the risk of which was incident to the employment, and was assumed by him. It is conceded by the learned trial judge that he did not place the nonsuit on the ground of the plaintiff’ scontributory negligence. In Goodrich v. N. Y. C. & H. R. Railroad Co., 116 N. Y. 404; 26 St. Rep. 767, it was held that when the defendant failed to show that it provided a car with bumpers in good order, and the injury was traceable to defective bumpers, it was liable, unless the proof showed that the plaintiff was in some way responsible for that condition. It is not pretended in the case at bar that the plaintiff had anything to do with the difference in height of these bumpers, or with the furnishing of the straight links. We are inclined to think that failure to provide an inspector for its cars, or to furnish a crooked link suitable to the coupling of this class of cars, was a question of fact for the jury to say whether or not the defendant had furnished for the use of the plaintiff reasonably safe tools and implements for the performance of his work, and that it was error to hold, as matter of law, that the defendant had performed its whole duty to the plaintiff, in requiring him to couple cars in the condition in which these were proved to have been. The defendant, in receiving these cars on to its road, was bound to use reasonable care in the inspection of the same, and in adapting them to the use of its employes, so as not to subject such employes to undue hazard in their use. Gottlieb v. N. Y. L. E. & W. Railroad Co., 100 N. Y. 462. Without stopping to examine the question of the increased obligation resting upon the defendant, growing out of the alleged incapacity of the plaintiff, we think there was enough in the case, independently of - that question, to have required its submission to the jury, and that it was error to take it from the jury. Judgment reversed, and a new trial ordered, costs to abide the event.

All concur.  