
    Elizabeth Byrnes, Adm’rx, App’lt, v. The New York, Lake Erie & Western Railroad Co., Resp’t.
    
      (Supreme Court, General Term,, Second Department,
    
    
      Filed July 28, 1893
    
    RAmnoAD—Ne&li&ence—Rules.
    Testimony of an agent of a railroad company who had charge of the business at the depot where the car in question was loaded, that he considered it part of his duty to inspect cars loaded by shippers before they were sent out, and that he so instructed the men under him, is insufficient to prove that the company had established and maintained a rule for the inspection of such cars; and where such agent failed to make the inspection and is contradicted by two witnesses the question is one of fact and should be submitted to the jury.
    Appeal from judgment dismissing the complaint.
    The action was brought to recover damages for causing the death of Sylvester Byrnes at Lordville, H. Y., February 25,1884. He was a brakeman in the defendant’s service at the time. Aflat car had been loaded with lumber at Lordville by William Holbert and was to be taken in the train on which the deceased was employed. The switch on which it was standing connected with the main track only at the west end, and it was necessary to push this car out by means of a stake placed between the rear end of the engine and the front end of the car, a process called “ staking a, car.” The train the deceased was on was east bound and, before reaching Lordville, the engine was cut loose and went ahead to stake the car out, so that it might be placed in the train. The deceased remained on the train. By the time the car was staked out the train, still moving, had nearly reached the switch, and so there was apparently danger of a collision between the car moving westward and the train moving eastward. The deceased left the train, ran forward, climbed on the lumber car, reached the brake and, either did apply it, or attempted to do so, when the collision occurred, and its force was such as to move the lumber back, and he was caught between the lumber and the end of the first car in the train, receiving injuries that caused his death. It was claimed by the plaintiff the lumber was so loaded on the car as to interfere with the use of the brake, and so it was impossible for the deceased to check its speed. Ho claim was made that the car was not in good order, or that the brake staff and appliances were in any way defective.
    
      John W. Lyon, for app’lt; Lewis E. Carr, for resp’t.
   Pratt, J.

The law of this case has been settled by the court of appeals in 113 N. Y., 255; 22 St. Rep., 936. It was there held, reversing a judgment for the plaintiff, that the evidence showed that the defendant was not guilty of negligence inasmuch as the defendant had established a system of rules for the inspcction of cars after they were loaded and before they were sent out upon, the road, to ascertain if they were properly loaded so as to be safe for handling by its employes.

The cause of the accident, therefore, was the fault of a fellow servant in not complying with the rules in making a proper inspection.

The plaintiff claimed that the car had been loaded with lumber so as to prevent the use of the brake at one end of the car and thereby the husband of the plaintiff lost his life.

The case was sent back for a new trial with the following instructions contained in the opinion, to wit:

“ If there should be made any question on a retrial as to whether the company had, in fact, provided rules for an inspection of the cars, and proper men to inspect them, after they were loaded and before they were taken away, such question would be proper to submit to the jury under proper instructions.”

We think the evidence raised precisely that question, and that it should have been submitted to the jury.

It is to be observed that there was no evidence whatever on the part of the defendant of the promulgation of any such rule. Ho printed or written rule of that kind was sworn to, nor even verbal instructions given by any officer to persons in charge of depots on the road.

The nearest approach to any such proof was the testimony of Lord, who had charge of the business at the depot where this car was loaded, who said he considered it a part of his duty to do so, and so instructed the men under him, and there was also proof by some men under him that he had so instructed them. But this proof was shaken by the fact that Lord did not inspect this car, and by further proof by former employes that Lord had never given them any such instructions.

It is true Lord said it was his custom, but that is far from proving that the defendant had established and maintained a rule for the inspection of loaded cars before they were sent out.

The question was purely one of fact, and considering the manner of Lord’s testifying, and the fact that it was possibly his fault in failing to inspect this car that the accident happened, and the further fact that he was contradicted by two witnesses, made it proper that this question should be submitted to the jury.

The defendant makes no point that the deceased was guilty of contributory negligence, or that the car was not proved to be defective when deceased took possession of it.

The only point in the case, therefore, is whether the defendant had established and maintained a system of inspection to ascertain whether its cars were properly loaded.

In this case the question is vital, as this car was not loaded by the employes of the defendant, but by the shipper of lumber.

Judgment reversed, and new trial ordered, costs to abide the event.

Dykmaísí, J., concurs; Barnard, P. J., not sitting.  