
    (117 App. Div. 188)
    McCANN v. INTERURBAN ST. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    January 25, 1907.)
    Master and Servant—Injuries to Servant—Safe Appliances—Street Railways.
    In an action for injuries to a motorman, it appeared that plaintiff’s car had been equipped with a new plow, a device passing through the slot rail to take up the electric current, that his car was a light one, and that it stopped suddenly, whereby he was injured, but that he succeeded in starting the car, and on a subsequent trip discovered that at the point where the car stopped the slot rail was closed up for about two feet, so that the opening was about a half an inch wide, whereas, elsewhere it was about three-fourths of an inch. It was shown that the plow was half an inch wide and that, if the car had been a heavy one or if the plow had been worn slightly, there would have been no trouble. It did not appear that plaintiff had any difficulty at such point thereafter. There wag some evidence that an inspector had stated that there was a defect in the slot rail in the vicinity of the accident. Held, that the evidence showed no negligence.
    Appeal from Trial Term.
    Action by Andrew W. McCann against the Interurban Street Railway Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial granted.
    Argued before PATTERSON, P. J., and McLAUGHEIN, INGRAHAM, HOUGHTON, and LAMBERT, JJ.
    John V. Bouvier, Jr., for appellant.
    Oscar A. Campbell, for respondent.
   LAMBERT, J.

The plaintiff was injured in an accident upon the defendant’s car on the 15th day of December, 1902. He was employed as a motorman, and on the day in question was sent out on a light four-wheeled car. The car had been newly equipped with a plow, a device which passes through the slot rail in the center of the defendant’s tracks, transmitting the electric current from the cable below to the motor on the car. No defect is suggested in this plow. It is stated only that it is thicker at the point where it passes through the slot rail than an old one. The accident occurred at or near the intersection of North Moore street and West Broadway, in the borough of Manhattan, and the negligence alleged is a failure on the part of the defendant to provide suitable, sufficient, and safe appliances, place to work, roadbed and connections thereto, and track, and that the defendant had notice of these defects.

The plaintiff’s story (ánd he does not call the conductor of the car or any other person who is alleged to have seen the accident) is to the effect that on the morning of the day mentioned, at 6 :50, he was approaching the street intersection, running downgrade, with the current shut off; that he saw a fire marker, and that under the rules of the company it was his duty to bring his car to a full stop; that he was applying his brake and had his weight upon his right arm; and that, while endeavoring to bring his car to .a standstill, the car stopped suddenly, throwing him against the gate, resulting in the injuries for which he is seeking to recover. He made no examination of his car or of the track at the time of the accident. He says he stood there with his car for a little time, and then went on his way, running the car until about 4 o’clock in the afternoon; that on his second trip back, at about 9:30 he got off his car at the point of the accident to find out the cause, and discovered that the slot rail had closed up to such an extent that for a distance of 2% feet the opening was only about half an inch, whereas, at other points it was about three-quarters of an inch. These measurements do not appear to be very accurate. He says that at the narrow place he could only pass one finger through the slot, while at the other points he could insert two fingers; but he .does not say how much room there was outside of the single finger, or :how tightly the two fingers were pressed. He says that .the. plow ,was about half an inch in thickness where it passed through the slot, and that if this had been a heavy car it would have passed through without a jar; and, while he must have started his car from a standstill on resuming his journey, he makes no mention of experiencing any difficulty in starting the car or in operating it over this same place during the day. According to his own estimates, the space was about half an inch wide, and the plow was likewise half an inch wide, and there is the intimation that there would have been no difficulty except that the defendant had equipped the car with a new plow. The plaintiff’s own testimony indicates clearly that he had no intimation of the cause of the trouble at the time of the accident, and he did not then look to tire condition of the tracks or the groove rail; but, when passing along on his second trip at 9:30, he got off the car and- found this alleged defect, which, he testified, over the defendant’s objection and exception, was in the" same condition as at the time of the accident, although he was shown not to have known anything about its condition at that time.

Where is the actionable negligence? What man of ordinary prudence and care, looking upon this alleged defect, would anticipate the accident, or one of a similar character? Actionable negligence is not predicated upon what we might see could have been done to prevent the accident, after the accident has happened, but upon the degree of care which ordinarily prudent men, looking at the situation before the accident has happened, would say was likely, in the exercise of ordinary care, to occur. And, in the light of this evidence, what man of ordinary care, knowing the equipment of these cars and looking at this alleged" defect, would anticipate that it would result in causing a sudden stopping of a car and producing injury? The plaintiff had had 25 years’ experience in running cars, and several years as a motorman ; but it does not appear to have suggested itself to his mind that the slot rails were out of order until several hours after the accident, and then he was obliged to leave his car to discover the defect, and the defect, if in fact it existed, was so slight that the plaintiff tells us it would not have jarred a heavy car, while his own car appears to have been operated through the same place all during the day, and to have been started without difficulty • (for none is suggested) from the very point where it came to a sudden standstill. . Assuming, as we may, in the light of the verdict of the jury, that this accident resulted from the closing up of the slot, the facts do not justify the conclusion of negligence on the part of the defendant. If the slot had been one-sixteenth of an inch wider than it was, or if the plow which was in use had been worn slightly, an accident such as is described could not have happened; and to say that the defendant owed a degree of care which should have discovered and remedied so slight a defect —that it should, in the exercise of reasonable, care, have anticipated that the defect would result in this or a similar accident—is carrying the doctrine of negligence to the point of absurdity.

It is true, of course, that there was some very loose testimony on the part of an ex-employé, to.the effect that he had, while employed as a starter, with some duty to report defects, been told by an inspector some days before the accident, and again on the morning of the accident, that there was a defect in the slot rail in the vicinity " where this accident occurred. But the person who is alleged to have made this report was not produced, nor was the point definitely fixed, and at most it could only go to the question of notice. As we have seen, if the situation had been called to the attention of the defendant, there was nothing from which reasonable minded men would have been led to believe that the accident described in the testimony would result. Indeed, if the plaintiff himself, with all his experience, had seen the slot as it may be assumed to have been at the moment of the accident, is it probable he would have anticipated that it would impede the running of the car and cause it to stop suddenly? He knew in a general way that the plow required about half an inch of space. He would have seen that the slot was about half an inch wide, and, knowing that cars had operated over it the day before, he would scarcely feel that the company was negligent in not opening the slot to the full width, as it was found in other places. And, if the plaintiff would not regard it as negligent before the happening of the accident, he is in no better position after the accident has happened. It is reasonable care which the law demands as between the master and servant; and, because there is no evidence in this case to show that the defendant had failed to exercise that reasonable care in its equipment, construction and maintenance, there was no question for the jury, and it was error to permit them to speculate upon the question.

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

INGRAHAM and McLAUGHRIN, JJ., concur. PATTERSON, P. J., and HOUGHTON, J., concur in result.  