
    Michael McQuigan, Resp’t, v. The Delaware, Lackawanna and Western R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1888.)
    
    Negligence—Contributory—When question op pact.
    The plaintiff, who was a brakeman on defendant’s train, slipped upon a defective cover of a manhole, on the tender, while passing from the engine hack over the tender to set brakes. In an action for damages for injuries sustained, it appeared that plaintiff had taken off and put back this cover • several times during the day, and that it had been in its defective condition for a number of days. Held, that it was for the jury to say, as a matter of fact, whether the plaintiff was guilty of contributory negligence. Follett, J., dissenting.
    Appeal from a judgment entered on a verdict of $5,000, taken at Chemung circuit, and upon an order denying a new trial.
    Action to recover for injuries sustained by plaintiff, a brakeman, while in the service of the defendant, on its trains running from Elmira to Buffalo, 1883.
    Plaintiff slipped upon a covering to a manhole,' while passing from the engine back upon the train to set brakes.
    
      McQuire & Turner, for app’lt; Jacob Schwartz, for resp’t.
   Hardin, P. J.

Plaintiff seeks to recover for the injuries sustained by him at the time the cover of the manhole in the tank tipped up, because the defendant had omitted to perform its duty to “furnish proper, perfect and adequate machinery or other materials and appliances necessary for the proposed work.” Marsh v. Checkering, 101 N. Y., 399.

The same case says, “in considering the application of the rule just stated, due regard must be had to .the limited knowledge of the employee as to the machinery and structure on which he is employed, and to his capacity and intelligence, and to the fact that the servant has a right to rely upon the master to protect him from danger and injury, and in selecting the agent from which it may arise.” Powers v. N. Y., L. E. and W. R. R. Co., 98 N. Y., 274.

In the Powers case, just cited, the nonsuit was upheld because the servant had “an intelligent and clear comprehension of the nature of the risks to which he was subjected.”

There the plaintiff had full knowledge of the defect in the hand-car, and he aided in operating it by aid of a crow-bar.

In the case in hand the evidence justified the jury in finding that the plaintiff had no knowledge of the defective condition of the cover of the manhole, which became displaced.

The plaintiff was in the ordinary discharge of his duty when passing from the engine back over the tender, and across the manhole cover to reach brakes to be set to control the train, in accordance with the orders given by the engineer.

It was for the jury to say, upon all the evidence, whether the plaintiff performed his duty in a prudent, careful manner. In making a finding upon that aspect of the case, they had a right to consider the space on either side of the manhole; the amount of coal lying therein, and the fact that the cover of the manhole lay in the direct and short path taken to reach the objective point.

We do not feel called upon to disturb their finding in that regard. If he exercised “such care and caution as a person of ordinary prudence would exercise under the circumstances,” he complied with the highest exactions of the rule of law in such cases. Evans v. The City of Utica, 69 N. Y., 166; Bullock v. The City of New York, 99 id., 654.

According to the 'evidence of some of plaintiffs witnesses, “the lining” had been off of the cover some time. If the same was inspected properly by defendant, the defect was discovered, and the same continued in use after knowledge of the defect. If defendant did not have that knowledge, then it did not properly inspect. The original construction of the cover seems to have been such as to guard against its slipping out of place. The displacement of the lining left the cover inadequate. Kain v. Smith, 25 Hun, 146; Warner v. Erie R. R. Co., 39 N. Y., 468; Powers v. R. R. Co., supra.

But the court left it with the jury to say whether it was negligence in the plaintiff to step upon it if he knew the lining was off the cover, and refused to charge as a mat tor •of law, that it “was negligence upon his part to step upon it under such circumstances.”

In Driscoll v. Mayor (11 Hun, 101), the plaintiff knew of the hole in the street, and she claimed her “mind was engrossed by business, and that she fell into the hole from her failure to give her attention to it, and it was held that it was for the jury to say whether she was guilty of such •contributory negligence as prevented a recovery.

In Weed v. village of Ballston Spa (76 N. Y., 333), it ■was said that “although he had knowledge of the excavation, he might not remember its exact location, or the fact may have been forgotten.” It was held that whether there was contributory negligence or not, was a question of fact for the referee.

A similar ruling was made in Laning v. The Central, 49 N. Y., 535. See Wood’s Mast, and Serv., §§ 359 and 360; Ochsenbein v. Shapley, 85 Y. Y., 324; 5 Y. Y. State Hep., 802; Pomfrey v. Village of Saratoga, 104 Y. Y., 469.

The cases of Cahill v. Hilton (106 N. Y., 512), and Marsh v. Chickering (101 N. Y., 396), differ from the one before us. In those cases the servants could not use the ladder without observing its condition. Here the cover could be used, by slipping it aside without revealing clearly and necessarily the defect of the lining.

We reach the conclusion that it was for the jury to say, .as a matter of fact, whether the plaintiff was guilty of contributory negligence.

It is claimed the verdict for $5,000 was excessive. If the plaintiff received the injuries to his penis, testacies, and scrotum, described and detailed by him and the physicians who speak upon the subject, as the jury may have found, then the j ury did not go too high in estimating the damages sustained by the plaintiff. The rule laid down and cases •cited in Minick v. City of Troy (19 Hun, 258), require us to refuse to interfere with the verdict, as we are not at liberty to say it was excessive.

It should stand.

Judgment and order affirmed with costs.

Martin, J.

I think the rule as to defendant’s duty, as laid down by the court in the charge, was erroneous. It was too broad. But as the attention of the court was not ••called to the proper qualification of the rule, it was not error to omit allusion to it. Probst v. Delamater, 100 N. Y., 267. Hence, I think, the judgment should be affirmed.

Follett, J.,

(dissenting).—For six months prior to November 1, 1883, the plaintiff had been employed as head' brakeman on defendant’s freight trains running between Buffalo and Elmira. The head brakeman rides upon the locomotive when not engaged in applying the brakes to the forward cars.

November 1,1883, plaintiff made his first trip on freight train No. 17, drawn by locomotive No. 35, which left Elmira, at 3 A. at., and reached Buffalo the same day at 2:30 p. M. In the deck of the water tank in the tender attached to locomotive No. 35, was a hole sixteen and one-half inches in diameter, surrounded by an iron cylinder extending ten inches above the deck, and closed by a cover. The cover, when in perfect order, was made of boiler iron, to the under side of which was bolted a circular piece of two-inch pine plank, the diameter of which was slightly less than the diameter.of the hole, so that when in position, the hole, or entrance to the water tank was securely closed. On the top, find in the centre of the cover was a ring, used for handling it. This hole is called the ‘£ manhole ’ ’ and through it water is taken into the tank. The cover is removed when water is taken and should be replaced when the tank is. filled. _ One of the duties of head brakeman is to supply the tank with water; in doing which he necessarily removes and replaces the cover to the manhole.

_ The plaintiff testified that the tank was filled with water eight times on this trip, and before he was injured. On some of these occasions he took the water, and on others, Campbell, the middle brakeman. He testified: “ In taking water I would lift the cover and put it on the coal beside-me; I would come up to the manhole and take the cover off and set it upon the coal and take the hydrant or one of these they pull around and put water in and take it back and put it in again. I do not know whether or not there-was any protection on the bottom of that cover. The cover never turned bottom side up while I was taking water., Campbell took water the last time before the accident, occurred.”

As the train approached East Buffalo, the engineer directed the plaintiff to apply the brakes; and in passing over the tender to reach the forward cars, he stepped upon the cover, which turned under him and he foil astride of its. upturned edge, sustaining injuries, for which he seeks compensation in this action. He claims that the circular piece-o£ plank, which formed a part of a perfect cover, was absent from this cover at this time, so that it was not securely held!, in place.

The_ negligence complained of, is to the use of this; defective cover, which is the sole ground of the action.

Campbell, the middle brakeman, testified that he was -employed on this train the week before the accident and .saw that the plank forming the under part of the manhole was entirely gone, and thinks he discovered this three <or four days before the accident. He testified that: It is the duty of the employees that when there is anything out of repair to leave it at the shop when they come to the end of the route.”

Craig, who acted as head brakeman on this train for fourteen days prior to November first, testified that the plank had been gone from this cover for about a week; but that he had not reported the defect, and did not know that it was his duty to do so.

This is the only evidence, in behalf of the plaintiff, as to the length of time the cover had been out of repair.

The court charged: “The duty of every railroad company is to supply its employees with proper machinery and .in good, safe condition, that they may perform their work . without any unnecessary danger arising from that. The first question which I shall present to you is as to the negligence of this defendant in having failed to furnish, as is claimed by the plaintiff, a suitable cover to this man-hole. The company was bound to furnish one, a suitable one, -one by its construction and in its condition, which was not a subject of any external danger in its use.” To these instructions the defendant excepted.

It was not claimed that the cover was defective in design or construction; but that defendant was negligent in permitting its "use while out of repair. The defendant insisted that if Oraig and Campbell testified to the truth, that the injury was caused by their (plaintiff’s co-employees), neglect to report the defect. The rule as to defendant’s duty was not correctly stated by the learned trial judge.

It is the duty of the master to exercise reasonable care to furnish suitable implements and to keep them in repair; but the master is not bound to keep them in repair. Probst v. Delamater 100 N. Y., 266.

In this case the instructions excepted to were particularly dangerous to the defendant, because, if there was sufficient evidence of negligence on the part of the defend.ant to raise a question of fact for the jury, the jury should have been instructed to inquire whether, under the facts proved, the defendant was negligent in using this cover in this condition, or whether the only neglect was that Craig and Campbell failed to report the cover to the engineer of the locomotive, or to some person having authority to remedy the defect.

The brakemen were required to remove and replace this cover every time the tank was supplied with water; and the plaintiff testified that he did not discover the defect on this trip, yet the jury found him free from negligence in not making the discovery, and found the defendant guilty of negligence in not having discovered this defect, which had existed about a week, but had not been reported by its. employees (plaintiff’s co-employees), whose duty it was to-report it. There is no evidence that these employees were-unfit for their duties.

It should be borne in mind that the cover was not a complex piece of machinery, but it was so simple in its construction and use that anyone having occasion to use it could readily understand whether it was in or out of repair. This cover was not designed for brakemen to walk upon, and there was no sudden exigency which excused such use, of it.

_ I think, upon the whole case, the plaintiff was not entitled to recover, and that the court erred in not granting a. rion-suit. Marsh v. Chickering, 101 N. Y., 396; Cahill v. Hilton, 106 id., 512; 11 N. Y. State Rep., 26; Thorn v. N. Y. City Ice Co., 11 N. Y. State Rep., 845.

The judgment should be reversed and a new trial granted, with costs to abide the event.  