
    Albert E. Smith, Respondent, v. The New York, Chicago and St. Louis Railroad Company, Appellant.
    
      Negligence-^- a failure to subject to a pressure test a rubber hose forming part of an air brake system— it is the neglect of the railroad company, not of the employee to-whom the duty is delegated—what inspection is insufficient — what facts as to deterioration of hose, etc., may be considered by the jury—proof of the frequent bursting of the hose does not malee it a risk of the employment.
    
    In an action brought to recover damages for personal injuries sustained by the-plaintiff, an experienced brakeman employed by the defendant railroad company, in consequence of the sudden Stopping of a moving freight train on.
    
      which he was employed, it appeared that the sudden stopping was due to the breaking of a rubber hose, forming.part of the air brake, system, which was attached to one of the freight cars composing the train.
    The defendant knew that a hose of this character was likely to burst and cause a sudden stopping of the train, and that the only efficient way to lessen the possibility of such an accident was by subjecting the hose to a pressure test before the train started on its journey. The hose in question was examined by a car inspector before the train started on its journey, and the car inspector testified that he found it to be in good condition. The evidence justified a finding that the hose was defective; that such defect could have been discovered by the pressure test, and that the hose was not subjected to that test.
    
      Held, that the jury were justified in finding that the defendant was guilty of negligence in failing to apply the pressure test to the hose;
    That the fact that, by a rule of the defendant railroad company, it was made the duty of each train crew to inspect the air brake appliances of the train, did not relieve the defendant from liability, it appearing that the inspection which the train crew were expected to make of the air brake hose was confined to a cursory examination thereof, and to listening for the purpose of ascertaining whether any air was escaping from it, and that such an examination would not disclose the existence of any defect unless the hose had actually burst before the examination was made;
    That evidence that rubber hose deteriorates with age even when not in use; that the hose in question was from two to three years old, and that the ordinary life of such a hose is from eighteen months to five years, might properly be considered by the jury in determining whether the defendant was guilty of negligence in failing'to subject the hose in question to the pressure test;
    That evidence that the breaking of an air brake hose is an accident of frequent occurrence upon railroads, and that the plaintiff knew that it was the custom to carry in the caboose of each train a supply of such hose for use in case of necessity, did not establish that the bursting of the hose was a risk of the employment which the plaintiff assumed;
    That any negligence on the part of an employee to whom the railroad company had delegated the duty of inspecting the air hose was the negligence of the defendant, and not that of a coemployee of the plaintiff.
    Adams, P. J., dissented.
    Appeal by the defendant, The New York, Chicago and St. Louis Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of June, 1902, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    The action Was commenced on the 9th day of October, 1901, to recover damages for injuries sustained by the plaintiff, alleged, to-have been caused solely through the negligence of the defendant.
    
      L. L. Babcock, for the appellant.
    
      Tracy C. Becker., for the respondent.
   McLennan, J. :

The plaintiff, who was twenty-four years of age, and an experienced brakeman, having been employed by the defendant in that-capacity for about three years, was injured on the 13th day of October, 1900, near Swanville, Penn., on the line of defendant’s road,, while engaged as brakeman in running a freight train consisting of an engine, about fifty-four .freight cars and a caboose, from Conneaut, in the State of Ohio, to the city of Buffalo. The first twenty cars, counting from • the engine, were equipped with the ordinary air brakes. The injury resulted from the bursting of a rubber air-hose attached to the rear of the seventeenth car from the engine,, which car belonged to the Atlanta and West Point Railroad Company of Georgia. It had come over the road of the Illinois Central railroad, and was delivered by that corporation to the defendant for transportation to Stony Island, the western terminal of its. railroad, on the 2d day of October, 1900.

The bursting of the hose permitted the brakes upon the freight train to become set, and caused the train, which was then going-between twelve and fifteen miles per hour, to stop suddenly. As a. result the plaintiff, who was sitting in the caboose, with his feet upon a bench Or locker, lost his balance, was thrown against a desk, his-head striking the corner, and he sustained the injuries for which he seeks to recover in this action.

The plaintiff was permitted to recover in the court below, upon the theory that the hose which burst was defective and not suitable for use; that such defect could have been discovered by reasonable-inspection ; that such inspection was not made by the defendant,, and, therefore, it was negligent in that regard, and that such negligence caused the accident which resulted in injury to the plaintiff.

The pieces of rubber hose, each about a yard long between cars-supplied with the air brake system, are a simple device and are* familiar to all. It is apparent, however, that they constitute an. important and essential part of the equipment of the train; and to a very large extent the safety of its operation depends upon whether or not such appliances are suitable for the purpose intended, quite, or nearly as much, as the wheels or other parts of the running gear of the .cars.

The general proposition of law that a master is under obligation-to make reasonable effort to furnish his employee with reasonably safe appliances with which to perform the task required of him, and that if he fails to perform such duty and such employee sustains injury by reason of the master’s omission in that regard the employee may recover from the master the damages sustained on account of such injuries, is too well settled to require the citation of authority. It is equally well settled that the only conditions which will prevent, a recovery by the employee in such case is that he knew or, in the exercise of ordinary care and prudence, ought to have known that such appliances were unsafe, and with such knowledge voluntarily continued to use the same, or that he himself was guilty of negligence in their use, which negligence on his part contributed to the injury.

The question presented by this appeal is whether or not the evidence fairly justified the jury in finding that the plaintiff was within the rule adverted to. This inquiry involves an examination of the facts, some of which are not controverted. For instance, it established beyond dispute that the natural and ordinary result of - the breaking of a hose like the one -in question, on a moving train, is to bring such train to a sudden stop, which will cause a severe jar in all parts of the train, if nothing more serious happens; that such sudden stopping is dangerous to the employees engaged in operating such train; that hose like the one in question, in order to perform the function for which it was intended, must be of sufficient strength to withstand an air pressure of seventy pounds, that being the amount of pressure required to operate the air brake; that whether or not a hose is capable of withstanding such pressure and suitable for use can, practicably, only be determined by subjecting it to such pressure, especially after it has been in use for some time; that the injury which the plaintiff sustained resulted from the breaking of the hose. We think it may also be said that the jury was justified in finding from the evidence that the plaintiff was not guilty of negli.gence by reason of anything which he did or omitted to do while, in the caboose.

Also, that the defendant well knew that a hose like the one in •question was liable to burst; knew of the serious consequences which were likely to follow, and knew that the only way to avert, even partially, such consequences, was .to carefully inspect the hose of any train, and test it by subjecting it to pressure of at least ■seventy pounds, before such train set out upon its journey. Was such test, in fact, made by the defendant ?

When the car to which the hose in question was attached was delivered to the defendant at Stony Island, its car inspector stationed at that place discovered that the car was in a defective condition ; that the roof, end and other parts had been broken. He testified that upon examining the car he discovered such defects and sent it to the shop to have it repaired. He also stated that he then examined the hose and found that it was in good condition; but it appears that the only examination which he made of it was to look at or handle it. The jury was amply justified in finding that at that time, or at any time while the car was at Stony Island, and before it was started east over defendant’s road, the air hose was not tested by applying air pressure to it. This is also true of all the other tests which the defendant claims it made of the hose in question prior to the accident, and, as we have seen, that was the only method by whicfi. it could be determined whether or not it was suitable for use. It appears that the pressure test may be made in one of two ways, either by applying the pressure direct from the engine after all the cars are coupled, or applying such, pressure from an independent power plant constructed for that purpose, which is in use on many of the railroads of the country, and which apparently is the much better and surer method of detecting defective or unsuitable hose.

Ooncededly, the hose in question was not tested by the last method, and we think it was for the jury to say, upon on all the evidence, whether or not it was tested by the othér. We, therefore, reach the conclusion that upon all the evidence the jury was justified in finding that the hose in question was not tested by the defendant prior to the accident, in such manner .as would probably have disclosed any defect therein, if such defect in fact existed.

A rule of the defendant, Ho. 182, which was put in evidence and •of which the plaintiff had knowledge, requires in effect that conductors must know that the cars in their trains have been inspected, and that the air brakes, air signal and steam heating apparatus are in proper working order. They are required to examine the air brakes, couplings, safety chains, signal cards, etc., so that they may know that everything is fit to run, and they must require the trainmen to aid them ,in making such examination. By another rule, Ho. 239, the trainmen are placed under the direction of the conductor, and it is expressly made their duty to assist the conductor in inspecting cars.

As. applied to the inspection of hose, it appears that the •examination or inspection referred to in the rule, as interpreted by long-continued use and custom on defendant’s road, meant only a cursory or casual observation of the hose, and listening to ascertain whether any air was then escaping; in other words, such an examination as would disclose whether or not the hose had already burst. Such an examination was made by the trainmen going along the side of the train, looking at all the parts, going between the cai’s, looking at all the appliances for coupling the same and listening for escaping air. In effect, they were to make an observation of the entire train, of all its appliances, and if anything connected therewith was discovered to be out of order, to report the same. The evidence shows — and it is apparent — that such an examination of hose would not ordinarily disclose any defect unless it had then actually burst and air was escaping. Such an examination was made of the train in question by the plaintiff and his associate trainmen, and according to their testimony it failed to disclose ' any defect in the hose in question. After the accident the hose was examined, and there is evidence tending to show that it was defective ; that it was soft and spongy and not suitable for use, but that such condition could not have been discovered by the plaintiff or or by his associates by any examination which they could have made while the hose was in use.

The hose in question was old; had been in use from two to three years, and the ordinary life of such an appliance is from eighteen months to five years. This was plainly indicated by a series of numbers stamped in the rubber, and the- evidence tends to show that such rubber hose deteriorates with age, whether in use or not. These facts might properly have been considered by the jury in-determining whether the defendant was guilty of negligence- in failing to subject the hose in question to the pressure test.

Upon all the evidence we conclude that the jury was justified in finding that the defendant was guilty of negligence because of its-failure to mate a reasonable inspection of the hose in question, and that such negligence was the proximate cause of the accident.

It appears that the hose upon cars run over defendant’s road, and in fact over all other railroads, frequently bursts, even that which has been tested by the most- approved methods, and it is the custom to carry in the caboose of each train a supply for use by the trainmen in case of necessity. All- this was well known to the plaintiff,, and it is urged that by reason of that fact it should be held that the-bursting of a hose was a risk of his employment, which he assumed.

The proposition- is untenable. If we are right in concluding that the jury was justified in finding that the accident which resulted in injury to the plaintiff would not have happened if the defendant had made a reasonable inspection of the hose in question, that it did not make such inspection, and that it was guilty of negligence because of its failure so to do, the defendant is not relieved from liability because of the fact that frequently hose in use upon its-trains which was properly inspected had burst, and caused accidents-similar to the one here being considered. In the latter case the master would not be' liable because not guilty of negligence, and-the employee assumes the consequences of all injury which comes-to-him in his employment, not the result of such negligence. He-does not, however, assume risks which result from the master’s negligence, although similar risks may be an incident of the employment, and often result in accident when the master is entirely free from negligence.

As we have seen, the jury was justified in finding that the defendant failed to make a reasonable inspection of the hose in question,, because of its failure to subject it to the pressure test, and was, therefore, negligent, and if so it is no defense that it delegated the performance- of that- duty,, with which concededly the plaintiff had. nothing to do, to another of its employees. It was still its duty, and any negligence in its performance was the negligence of the defendant, and not the negligence of a coemployee of the plaintiff. (Sutter v. New York Central & Hudson River R. R. Co., 79 App. Div. 362.)

The exceptions to which attention has been called we think are not of sufficient importance to require a reversal of the judgment.

A careful examination of the record and of the questions involved leads us to conclude that the judgment and order appealed from should be affirmed, with costs.

All concurred, except Adams, P. J., dissenting.

Judgment and order affirmed; with costs.  