
    Frank X. Gerstner, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — injury from a splintered portion of a car giving way while being mounted by a brakeman to be stopped on a “ cripple track ” — the inspector marking the defect and the brakeman are fellow-servants.
    
    In an action to recover damages for personal injuries it appeared that the plaintiff was an experienced hrakeman employed in the yard of the defendant railroad company; that, as trains arrived at the yard, inspectors would examine the cars composing the train, mark the defective cars, which were thereupon taken out of the train and placed upon tracks known as “cripple tracks;” that, as the defective cars were moving along the cripple track, the yard brake- ■ man would mount them and stop them at any desired point.
    It further appeared that on the day of the accident a car marked by the inspectors as having defective bumper bolts was sent to the cripple track; that, as it was moving along that track, the plaintiff attempted to board it for the purpose of braking it; that in doing so he placed his hand on a portion of the body of the car which had been splintered; that the splintered portion gave way and that he fell to the ground.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed; .
    That the accident to the plaintiff was one which pertained to the risk of his employment;
    That the inspection of the cars was solely for the purpose of taking defective cars out of the trains and not for the use of the defendant’s employees;
    That, with respect to the inspection of the cars, the inspectors and servants engaged in removing the defective cars were cóemployees, and that as to the manner in which the inspection should be made the defendant owed no duty whatever to the plaintiff.-
    Adams, P. J., and Spring, J., dissented.
    Appeal by the defendant, The New 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 Niagara on the 22d day of October, 1902, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 29th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles A. Pooley, for the appellant.
    
      S. E. Filkins, for the respondent.
   Nash, J.:

The plaintiff was in the employ of the defendant as yard brakeman in the Suspension Bridge yard, and was injured in attempting to mount a cripple flat car while in motion, going at the rate of six or eight miles an hour, for the purpose of stopping the car at the proper place on what is known as the cripple track.”

The accident occurred in the daytime. The plaintiff had been working for the defendant twenty years. There is in the yard a large number of tracks, forty-seven in all, two of which are cripple tracks upon which cars requiring repairs are placed. When trains come into the yard inspectors, one at each side, mark the defects they discover and take the number and defects, and cars so marked are taken out of the train and sent to the cripple tracks. The manner of placing the cars on the cripple tracks is described by the plaintiff in his testimony. When the cars came into the yard two men come out and inspect them and mark the defects on the cars as they go along, on the body of the car. “ If there is any bad roof or very bad brake it is marked off with a circle, condemned or bad brake, with a cirple. * * * During these years that I worked for the road I was yard brakeman: I used to catch these cars as they were cut from the train and mount them and- stop them in their place. We would go down with the engine and pull up a string of cars, 30 or 40, 50 or 60 cars, according to the weight of them, if they could handle them. The engineer would pull away up on the main track and the conductor would be- there and give signals to the switch tenders what track he would want the ears to go on. The switch tenders were on the ground, stood there to throw the switch, any switch there was to be seen. They were at the head of these several tracks at the point where this long track was, where the train would connect with these several tracks I have mentioned; one man there and one down below the other switches;. there was one man stationed at the main switch, lead switch, and there was one man throws the other switches, where they branched off of these several tracks. When a car was sent down the switchman would see it and send it off onto one of those tracks; when it got there and got on the track and was going along, we got up at the brake to stop it and let it. go in only so far, two of us, two men. In order to get onto these cars we had to run they were cut away loose from the train while we are down in the yard, we had to run up to meet them. They were coming towards us going west and we had to come up and me.et them. * * * On July 28,1899', I took a car down on the main track and my partner with me took two more cars down; I think it was on the water track, or loading track, and the next car that came down was a flat car. I had to run to meet that'as they came down from this main track. I ran to meet this car; came running ahead of it, crossed over ahead of it, it was coming a pretty good gait, and 1 had to run alongside of it, I seen it marked bumper bolts. I jumped on the car with my left hand in the stake hold and my left foot on the brake beam and my right hand on the body of the car, and swung up like that (indicating). * * * You could see it was broke, it was an old dark splinter. I fell back, went down across the rails and my foot catched in the split switch and struck my back right across the rail. This end of the platform, just as I had my hand in there, I saw it bent down and splintered, and in a second I was- throwed back and fell to the ground.”

It áppears from the description of the method pf operation by which cars was sent to the cripple tracks that the mark of the inspector was not to inform the plaintiff as to how he was to perform his duty. Primarily the inspector’s mark informed the conductor that the car was to be taken out of his train and sent to the cripple track. The conductor gave the signal to the man stationed at the main or lead switch,” and also to the switch tenders of the other tracks, what track (cripple track) he would want the cars to go on.” The switchman would see it and send it off onto one of the cripple tracks and as the car was moving on the cripple track it was the duty of the plaintiff and his assistant to meet it, get “ up at the brake to stop it and let it go in only so far.”

• It was not necessary that the plaintiff, for the performance of his duty, should observe the mark of the inspector upon the car. It was his duty when he saw the car coming on one of the two cripple tracks to run and meet it and stop it at the proper place on the track. The cars were marked on either side, the side where the defect was found. He may or may not see the mark. Practically he could see the mark only on the side of the car he was on. He was engaged in handling the cripple cars. The mark of the inspector aside from indicating where the car was to go, was to inform the car repairer of the nature and extent of the defect.

From the nature of the duties of the plaintiff and the manner of performance, the accident to the plaintiff was one which pertained to the risk of his employment.

The case of Arnold v. D. & H. C. Co. (125 N. Y. 15) is directly in point, and the distinction between the case here and one where the master is liable because he has failed in his duty of inspection is clearly stated in the opinion. There the plaintiff was a brakeman employed in defendant’s yard; there were inspectors whose duty it was on the arrival of every train in the yard to examine each car, and if the injury of defect was discovered, to remove the car from the train and place it upon a track known as the “ cripple track” for repairs, and in this work the plaintiff was employed. In attempting to couple two cars, one of which had a broken draw-head, in order that the latter might be placed on the cripple track, plaintiff was injured. Held, that the plaintiff took the necessary risk of the employment, one of the purposes of which was to handle and remove disabled cars. Judge Finch, in the opinion, said there was no evidence that the defendant company failed in the performance of any duty which it owed the plaintiff. He was injured in attempting to couple two cars, one of which had a broken draw head, and the negligence averred is the presence of that defect. But it is no ground of liability of the company that the drawhead was broken and the cars could not be coupled in the ordinary way, for the duty of the plaintiff was to handle defective as well as uninjured cars, and aid in taking the former out of the trains and placing them upon the tracks where they could be repaired. He took the necessary risk of his employment. One of the purposes'of his employment was to handle and remove cars which were disabled, and if he did not know the condition of the one in question he was bound, to assume that it might be disabled and govern his action accordingly. “ It is in that respect that this case differs essentially from Goodrich v. N. Y. C. & H. R. R. R. Co. (116 N. Y. 398). * * * In that case the cars were being coupled for the purpose of proceeding on then* journey. The plaintiff was required in the night time, and with the aid of a lantern, to make the coupling, and found a broken drawhead, in seeking to use which his arm was crushed between the deadwoods The case was so close upon its facts that the reversal was by a bare majority of the court; but it stands upon the distinct ground, not at all applicable to the present case, that the master had failed in his duty of inspection and repair, and the servant had a right to assume that the cars were perfect and act on that assumption. . Precisely the contrary is the fact here. There had been inspection, the coupling was for the purpose of repairs, and the servant had no right to assume that the cars were perfect and act .'on that assumption. . The rule and custom of, the business in the yard was to chain up or prop up a defective drawhead, which' had fallen below its proper level, in order to make the couplings meet. That was a detail of the servants’ work in the yard and not the master’s duty to the servants.”

The language of the court there with proper change of phraseology might be employed here. The mark of the inspector here was a mere detail of the work of sending the car to the cripple track, and as to that the inspectors and the .servants engaged in moving the cars were coemployees. The inspection was solely for the purpose of taking the defective cars out of the trains, not for their use by the employees of the defendant. As to the manner in which the inspection should be made the defendant owed no duty whatever to its servants engaged in the work.

■ The judgment should be reversed.

McLennan and Williams, JJ., concurred; Adams, P. J., and Spring, J., dissented.

• Judgment and order reversed and new trial, ordered, with costs to the appellant to abide event, upon questions of law only, the facts ha vine- been examined and no error found therein.  