
    Zadie E. Durkee, as Administratrix, etc., of Oscar Durkee, Deceased, Respondent, v. Hudson Valley Railway Company, Appellant.
    Third Department,
    November 13, 1907.
    Railroad — negligence — collision at switch — improperly constructed bumpers.
    When two cars are scheduled to pass each other at a certain switch, the act of employees in placing one car,so as to obstruct the passage of the other whereby a collision occurred is negligence of a fellow-servant for which the master is not liable:
    When it is shown that two trolley cars which collided at a siding were so con structed that the bumper of one was so much higher than that of the other that it passed over the lower bumper and crashed into- the vestibule, killing the motorman, the negligence of .the railroad in furnishing cars so constructed is a question for the jury.
    Smith, P. J., and Sewell, J., dissented.
    Appeal by the defendant, the Hudson Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 23d day of January, 1907, upon the verdict of a: jury for $4,500, and also from an. order entered in said clerk’s office on the 1st day of February, 1907, denying the defendant’s motion for a new- trial made upon the minutes.
    
      W. L. Kiley, for the appellant.
    
      J. A. Kellogg, for the respondent.
   Kellogg, J.:

The defendant’s Troy car, north bound, and its local car, south bound, were to pass each other at a. switch, the Troy car to keep the straight track, the local car to take the side track. Late at night the Troy car arrived at-the switch ahead of the local car, and stood in part covering the point of the switch so that it obstructed the passage of the local car on to the side track, and a head-on collision of.the cars caused the death of the plaintiff’s intestate. Placing the Troy car upon the entrance to the switch was the act of a fellow-servant, and the liability of the defendant is not predicated upon that negligence.

The only question submitted to the jury as tending to show negligence of the defendant, was the-manner in which the bumpers, so called, upon the two cars were placed with reference to each other. The Troy car was a longer and higher car than the local car. The bumpers upon these cars formed the front sill of the car, and are an extension of the floor of the car beyond the vestibule. They were constructed of oak timbers six or eight inches in width, and bound with heavy iron: In case the two cars were pushed

against each other the bumpers would not meet, but those of the Troy car, on account of its greater height, would lap over those of the local car and strike against the vestibule. When the cars collided, the bumper of the Troy car passed entirely over that of the local car and broke through and crushed the vestibule and controller stand at which the plaintiff’s intestate, the motorman, was stationed, and killed him. The Troy car was uninjured. The fact that the bumpers were built of heavy oak timbers, and bound with iron, shows that such construction was intended to protect the car in case it ran against an obstruction. Did the defendant furnish suitable .cars when they were so constructed that in case of coming together the bumper of the' Troy car could serve no purpose except to break or demolish the local car ?

It was a fair question for the jury whether the defendant was not negligent in furnishing -its employees cars so constructed. The conclusion of the jury that defendant was negligent in. furnishing unsuitable cars, and that such negligence caused the death of the intestate, and that he was free from contributory negligence, is. fairly sustained by the' evidence. The judgment and order should, therefore, be affirmed, with costs.

All concurred, except Smith, P. -I., and Sewell, J., dissenting.

Judgment and order affirmed, with costs.  