
    Michael B. Kenney, App’lt, v. Second Avenue Railroad Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    1. Negligence—Pbooe.
    The fact that the key to the iron bolt which connects the brake rod with the cross-lever, by means of which the brakes are set, is not found in place after the accident, is not sufficient to authorize the jury to find that the company failed to exercise due diligence to furnish a proper car. As between the company and its driver, the happeniug of such accident is not sufficient to warrant the inference of negligence.
    2, Same—Contributor*.
    A driver who, knowing that a brake is out of order, fails to apply a remedy, cannot be held to be free from negligence.
    Appeal from a judgment, dismissing the complaint.
    
      Thomas P. Wickes, for app’lt; Payson Merrill, for resp’t
   Follett, J.

This action was begun October 11, 1889, to recover damages for an injury caused, it is alleged, by the negligence of the defendant and its employes. The plaintiff was employed as a driver on defendant’s road. He was first employed in 1869, and again he entered its service March 17, 1886, and continued therein until the accident. March 20,1888, the plaintiff left defendant’s depot, above Eighty-Sixth street, at 1:40 p. m., to make a down trip, driving car Ho. 71, When Twenty-Third street was reached, the plaintiff noticed that the brake did not operate properly. As he approached Chatham Square an East Broadway car was entering on the track on which the plaintiff’s car was being driven, and he attempted, by application of the brakes, to stop his car. But the brake did not work, and the car, being on a down grade, continued to move ; and in order, to prevent a collision he drew the team sharply to ‘ the right, and whipped it so as to derail the car, and prevent it from colliding with the East Broadway car. In doing this he was thrown against the hand rail of the dashboard, fracturing his hip bone. The failure of the brake to work was caused by a bolt being displaced which united the cross lever with the brake rod. The cross lever, by means of which the brakes are set, is connected with the brake rod by an iron bolt passing down through rod and lever, and is held in place by an iron key. In some way the key got out of the bolt, which worked up out of the beam, and remained in the brake rod, but so as not to unite the two, thus making it impossible for the driver to apply the brake effectually to the forward wheels of the car. This car (No. 71) was taken from the repair shop on the very day of the accident, the trip on which it occurred being.the first one of that car since it came from the shop. There is no evidence that any of the defendant’s mechanics or inspectors were incompetent or negligent. The mere fact that the key was not found in place after the accident is not sufficient to authorize the jury to find that the defendant faired to exercise due diligence to furnish a proper car. As between the defendant and its driver, the happening of the accident is not sufficient to authorize the inference of negligence. It is frequently found that such keys and pins are displaced by the motion of the moving cars.

Again, the plaintiff testified that he had long been a driver, and that he could tell by the working of the brake whether it was in good order, without looking at it. When he left the depot, at the beginning of the trip, he thought the brake was in good order, but when he reached Twenty-Third street, and attempted to apply it, he found that it was not in order; but he did not search for the cause of the difficulty, and made no attempt to remedy it, as it was his plain duty to do. In the crowded avenues of this city, it is essential to the safety of passengers and persons .using the streets that the brakes on the street cars should be in perfect order, and a driver who, knowing that a brake is out of order, faijs to apply a remedy, cannot be held to be free from negligence. We think the plaintiff was rightly nonsuited because he failed to establish that the defendant was guilty of negligence, and because he, by his own negligence, contributed to the injury. The judgment should be affirmed, with costs.

All concur.  