
    Annie De G. Van Sickle, as Administratrix, etc., App’lt, v. Atlantic Avenue Railroad Company, Resp’t.
    
      (Brooklyn City Court, General Term,
    
    
      Filed April 22, 1895.)
    
    1. Master and servant—Risk.
    Where a servant knows whether an appliance is defective but has never complained of its condition as unsafe or dangerous, nor of a fellow-servant as incompetent or negligent, he must be deemed to have assumed voluntarily any risks resulting from the use of the appliance or the employment, of such co-servant.
    
      2. Same.
    The evidence was held, in this case, insufficient to charge the company with negligence.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      Horace Graves, for pl’ff; Tracy, Boardman & Platt, for def’t.
   Osborne, J.

Plaintiff’s intestate had been in defendant’s employ for some eighteen or nineteen years prior to his decease, and for the past four or five years had been foreman of the repair shop of the Bergen Street Line of defendant, located on Bergen street, at the termination of that line, and having “charge of the fixing and repairing of the cars and of the depot, and looking after the depot in general, as regards repairsand in the absence of James J. Roddy, the superintendent, deceased had general charge of the depot. At the termination of this line, on Bergen street, and on the northerly side of the street, was its car house, which connected with the tracks on the street by a tongue switch. A short distance further east was a cross-over switch, used for transferring cars from the southerly or up track to the northerly or down track. On January 10, 1891, the day that plaintiff's intestate met his death, he was engaged in repairing a car (No. 11) which was standing on the northerly or down track on Bergen street, with its rear end overlapping the switch leading into the car house. One Thomas Roddy, a young man also in defendant’s employ, got on car No. 40, standing on the southerly track, and started to drive it up to the cross-over switch, with a view of transfering it to the northerly or down track. After driving about two car lengths, his car took the switch leading into the car house, ran up against the car which deceased was working upon, and the head of deceased was crushed between the drip rails of the two cars, causing his death.

Plaintiff brings this action to recover damages for causing her intestate’s death; claiming that it was due to the negligence of defendant in maintaining said tongue switch in a defective condition, and also in the employment of said Thomas Roddy, who, she claims, was an incompetent servant. On the trial, plaintiff adduced evidence tending to show that this tongue'switch was in bad condition, in that the tongue of the switch was worn down to a point below the level of the rail, and-that the pin holding one end of the tongue was so loose that a wagon running over the switch, ■or any striking of the rail by a car, would jar the tongue from ■one side to the other, so as to open the switch, and that this alleged defective condition had existed for six months prior to the accident. Defendant introduced evidence tending to show that the switch was in good condition, and that there were no such defects in it as plaintiff claimed; and the switch itself was produced in court for inspection, and it was shown that it was in the same condition as when plaintiff’s intestate was killed, and that no repairs had been made on it since that time. Defendant further proved that the practice as to blocking this switch was as follows:

“ In case of blocking a switch, if the block was out of the switch, we would go in, or send some one, to get Joe (deceased) to get the block ready; and he would go out, and put it "in the ■ switch. Sometimes he would put a block of iron in it, which was a nut. If he didn’t have a nut, he would put a block of wood in it. If it was not a block of wood, we would put a piece of rubber in it. But it was invariably a block of iron—a large nut—which was put into that switch. He (deceased) did the blocking. Sometimes a block would remain there for a week,—for a month, sometimes; a block of iron. Other times it would be lost, by the conductor taking it, and forgetting to put it back in the open switch. When it was discovered that the block was not in the switch, they went to Joe, and Joe brought the block there, and placed one in place of the one that had been lost or went astray.”

It was also testified to by Superintendent Roddy that on the evening before the accident the switch was blocked, and that he drove over it on the morning of the accident, and that it was in perfect condition. It further appeared that, when a conductor wanted to run a car from the car track into the car house, it was ■his “duty to get off the back of his car, and go to the front, where the switch is, and take the block of wood, turn the switch, and tell the driver to drive into the car house; after the car has passed ■over the switch, to turn the switch back to its proper place, and place the block there again, where he had taken it out.” It was further shown that deceased had received positive orders from the superintendent to take all cars that needed repairing-into the car shop, and repair them there, sothat “there would be no danger of ■accidents.”

On the question of the alleged negligence of the defendant in employing an incompetent servant, it was shown by a witness for the plaintiff that the young man, Thomas Roddy, who was driving the car No. 40 at the time it took the switch, was about seventeen or eighteen years old; that he had been employed around the depot about ten years, and had been driving cars around there for three or four years before the accident; that he also acted as tow boy, drove cars down to the shop, and brought horses from the ’•stable. And this witness further testified:

“ I have seen Roddy transfer these cars from one track to the ■other, as he was doing this time, probably a hundred times. I have seen Yan Sickle (deceased) working around there while Roddy was doing this work of which I have spoken, frequently.”

At the close of all the evidence a motion to dismiss the complaint was granted by the learned trial judge, on the ground that there was no proof that the switch was closed when the car left the track, and on the further ground that, if the switch was defective, it was apparent to any one who worked on the premises, and that the deceased assumed the risk ; and on the ground that the driver was not incompetent, and, even if he was incompetent, it was known to the deceased, and he assumed the risk of working in the neighborhood. The learned counsel for the plaintiff asked to go to the jury on the questions of contributory negligence and negligence of the defendant, and excepted to the refusal to submit the case 'to the jury, and the exceptions taken were directed to be heard in the first instance at the general term. This case is now before us on those exceptions.

After a careful examination of this case, we are of the opinion that plaintiff failed to sustain her cause of action. It was her duty to show, affirmatively not alone the freedom of deceased from contributory negligence, but also that his death was due solely to the negligence of the defendant; and, in default of her so doing, defendant was entitled to a dismissal of the complaint. Rose v. Railroad Co., 58 N. Y. 217, 222. It is plain that the collision of the cars which caused the death of plaintiff’s intestate was due to one of two causes,—either, firstly, that the switch in question was left open through the negligence of the deceased, or some other employe of the defendant; or, secondly, that at the time of the accident the switch was closed, and that by reason of its defective condition it was opened by the passage of the car, and the collision resulted which caused the death of plaintiff's intestate. There is no evidence whatever that this switch was closed at the time of the happening of the accident, even though it was not' blocked; and a verdict based on the claim of the plaintiff that the collision of the cars was due only to the defective condition of the switch, and to its being opened by the jar of the car, would necessarily be based on speculation. The evidence is plain, clear, and uncontradicted that deceased was in the habit of providing the block or iron nut with which to block the switch, and that when one was lost or mislaid he was applied to, and furnished another, and that it was the duty of the conductor taking a car into the car bouse to unblock and open the switch, and, then, after his car had passed over the switch, to close and again block it. There is nothing to show but that this switch was left open by some conductor after taking a car into the car house. For aught that appears to the contrary in the evidence, it is just as likely that the switch was left open as that it was jarred open. If left open, then it was clearly negligence on the part of a fellow servant, and in that event defendant would not be liable. To have submitted this case to the jury on the contention of the plaintiff that the switch was jarred open, in the absence of any evidence that it was closed before the car approached it, would simply call upon the jury to conjecture what the real situation was.

But even if we conceded, for the sake of the argument, that the death of plaintiff’s intestate was due solely to the defective conditian of the switch, or that it was due in part to that cause and in part to the incompetency of Eoddy, the driver of the car, we still fail to see how plaintiff could be entitled to recover. Deceased was an old employe of the defendant, a railroad mechanic, and thoroughly familiar with, and constantly working about, this switch, and also equally familiar with Eoddy and his method of doing the work he was called upon to perform. If, as claimed by plaintiff, this switch was defective, none knew it better than deceased ; and there is no pretense that hfe ever complained of its condition as unsafe or dangerous, or of Eoddy as an incompetent, or negligent servant. Under those circumstances, deceased must be deemed to have voluntarily assumed any risks resulting from the use of the switch or the employment of Roddy. Sweeney v. Envelope Co., 101 N. Y. 520; Gibson v. Railroad Co., 63 id., 449 ; Running v. Railroad Co., 49 id., 521; Williams v. Railroad Co , 116 id., 628; 27 St. Rep. 760; Plunkett v. Donovan, 36 St. Rep. 91.

The exceptions taken to the admission of evidence at folios 68'? 69, and 72 have no merit, and do not call for any discussion.

For the reasons above stated the exceptions of the plaintiff should be overuled, and judgment directed for defendant, with costs.  