
    RYAN v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    Master and Servant—Negligence of Master.
    The failure of a railroad company to properly secure lumber loaded on a car for transportation, in consequence of which a trainman on another train is injured, is negligence for which the company is liable to the injured employs.
    Appeal from circuit court, Onondaga county.
    Action by Mary Ryan, as administratrix of the estate of Ernest C. Ryan, deceased, against the New York Central & Hudson River Railroad Company to recover for the alleged negligence of defendant in causing the death of plaintiff’s intestate while riding in the cab of a freight engine. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial made on the minutes, defendant appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Ashbel Green and L. L. Waters, for appellant.
    Walter W. Magee and William Kennedy, for respondent.
   HARDIN, P. J.

On the 26th of August, 1893, plaintiff’s intestate was in the employ of the West Shore Railroad (operated by the defendant) as a brakeman, and was on train No. 75 going west, when he received injuries from which he died the next day. About a half a mile east of Auriesville, while sitting in the cab of the engine, the deceased, it is claimed, was struck by a board projecting from a car loaded with lumber passing east on the adjacent track. The evidence tended to show that a stake was dozy, rotten, and imperfect, which passed into a socket on the side of the car loaded with lumber, and that the lumber got loosened, and thus allowed a board to project from the pile, which struck the intestate, injuring him. The board, when examined after the accident, was covered with hair and blood; a piece had been split therefrom, and, subsequent to the accident, near where it occurred, the piece was found, and that was covered with hair and blood. The evidence given by the plaintiff tended to show that the stake was rotten and imper-feet, and by reason thereof the accident occurred. The defendant gave evidence tending to show several inspections of the loads of lumber while the train was passing eastward, and the nature and character of such inspection. If, however, the stake was rotten and imperfect to the extent described by the witness. Parsons, the inspection was inadequate, and the duty of the defendant in that regard had not been discharged, inasmuch as “there was a negligent failure to discover it.” Bailey v. Railroad Co., 139 N. Y. 302, 34 N. E. 918; Railroad Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756. It was the duty of the defendant to provide safe appliances and apparatus for the use of its employés. Providing a decayed, rotten, dozy stake, to hold the binders of the lumber, was not a compliance with the duty the defendant owed its employés. The stakes were necessary to secure the lumber properly whilé in transit, and if the defendant failed to exercise proper care in respect to their condition it was chargeable with negligence. Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. 407; Dougherty v. Railroad Co. (Sup.) 18 N. Y. Supp. 841, affirmed 138 N. Y. 641, 34 N. E. 512; Redington v. Railway Co., 84 Hun, 231, 32 N. Y. Supp. 535.

Upon all the facts and circumstances and evidence disclosed, it was for the jury to determine whether the defendant had discharged its duty in the premises. Doubtless, the jury gave faith and credit to the evidence of Parsons. We do not find facts and circumstances, contradicting his evidence, of such a nature and character as to warrant us in setting aside the verdict as unsupported by evidence in regard to the question of defendant’s negligence, and the intestate’s freedom from contributory negligence. When the trains passed each other they were moving at about the rate of 18 miles per hour. Under the rules and practices sanctioned by the defendant, as well as the express authorization given by the train master, Ford, for brakemen to ride upon the engine, we think the jury were at liberty to find that the deceased, at the time of the accident, was not violating the regulations and instructions of the defendant by riding in the cab of the engine.

The trial judge charged broadly that if the negligence of a fellow brakeman caused the injuries, a recovery could not be had, and that the jury must find it was the negligence of defendant solely that caused the injury, and in that case the defendant was liable. The charge seems to have been as favorable as the defendant was entitled to under the evidence. The trial judge refused to charge “that the evidence does not warrant the inference that the death of plaintiff’s intestate was caused by the defect in the stake or binder on the car in question.” He had already charged that plaintiff could not recover “unless the projecting board reached such a position at the time of the. accident as to have struck Ryan, by reason of the defect in the stake and binder on the car in question.” We think the court properly allowed the jury, after considering all the evidence and circumstances presented, to draw the natural and legitimate inferences therefrom in determining how the intestate received the injuries causing his death.

Judgment and order affirmed, with costs.' All concur.  