
    Annie M. Clark, as Administratrix, etc., of George O. Clark, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    November 14, 1906.
    Master and servantbrakeman thrown from car by sudden stop of train — assumption of risk.
    Where a freight brakeman is thrown from the top of a car by the sudden stopping of 4be engine at the signal of another brakeman who has failed to cut a coupling between two cars of the train, a recovery cannot be based upon a claim that the accident was caused by a defect in the device for lifting the pin from the coupling, for in shifting cars jolts often occur from the failure of attempts to uncouple and this is a risk of the employment against which the brakemen must guard themselves.
    Kruse, J., dissented.
    Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 5tli day of April, 1906, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 27th day of' April, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      A. H. Cowie, for the appellant.
    
      A. Lee Olmsted, for the respondent.
   Nash, J.:

The action is to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

The plaintiff’s intestate was a freight brakeman in the employ of the defendant at the time of his death. His train arrived at Seneca Falls about ‘four p. m. September 25, 1905, where there were three tracks—-the main track on the south, a passing siding- next north, and next a storage siding, on which there was a string of five or six cars, the most westerly of which was a hay car to be taken on. For that purpose the engine and one car, referred to as the Syracuse car, wére detached from the easterly end of .the train, and run over onto the storage siding; a coupling was made to the easterly car of the string, which was a Michigan Central car, and they were pulled down to the east until the hay car cleared the point óf the switch leading from the storage to the passing siding, and was backed in and coupled to the train. 'Then the rest of the cars of the string were pulled out for the purpose of placing them back on the storage siding. There were automatic couplers on the Syracuse car and the Michigan Central car. As the engine backed the string westerly on the storage siding, Hoy, a brakeman, walked alongside for the purpose of cutting the coupling between the Syracuse and Michigan Central cars. The speed was about four or five miles an hour. There was a slight curve in the track, so that the engineer could not see Hoy when close to the train. When it was time to make the cut, Hoy stepped out from the train and signaled the engineer to slow up or stop, which he did, reducing the speed to about two miles an hour, or nearly to a stop. This had the effect of letting-out the. slack and loosening the coupler between the cars. Hoy then stepped in and tried, by lifting the lever, to pull the pin which, held together the coupling between the Syracuse car and the Michigan. Central car. * The lever turned without lifting the pin, and he thus failed to uncouple the cars, which were brought up with a jerk by the stoppage.of the engine. Then Hoy signaled the engineer to back easy, and when the slack came he pulled the pin by hand. At the time-that Hoy first, failed to pull the pin, the plaintiff’s intestate was walking westerly along .the top of the rear car, within two or three feet of the west end of it, and when the jolt came, because of the stoppage of the engine, he pitched forward, head foremost, over the end of the car -to the track, and. was ' run over, causing the injuries which resulted in his death.

The failure of the operating lever to lift the pin which held together .the coupling on this occasion is attributed to a broken clevis between the operating lever and the pin- of the automatic coupler, which the defendant had neglected to repair. This is the sole ground of alleged negligence on the part of .the defendant.

There are various causes of failures of attempts to uncouple cars not attributable -to defective couplers or machinery. The pins stick, caused by rust or dirt in the coupler; the links of the coupler become battered, or the pins bind on a curve, or the slack is not sufficiently taken up, and in other ways there are failures to uncouple, resulting in the letting out of the slack which brings the cars lip with a jerk, as on this occasion. In shifting cars, jolts from the'canses mentioned constantly occur, against which the brakemen are required to guard themselves from injury. They are the usual and ordinary results of moving ears in railroad yards, risks which they take in the course of their employment.

We think it was error to submit the case to the jury, and for that reason the judgment- must be reversed, and a new trial granted, upon questions of law only.

All concurred, except Kruse, J., who dissented.

Judgment and order reversed and new trial ordered, with costs ta the appellant to abide event, npon questions of law only, the facts having been examined and no error found therein.  