
    Mary C. Murray, as Administratrix, etc., of William H. Murray, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Negligpnce— injury to an engineer struck by a.water plug while leaning out of his engine — assumption of the risk by the engineer.
    
    In an- action brought to recover damages resulting f reta the death of an engineer on the defendant’s railroad, who, while leaning out of the side of his engine for the purpose of examining the machinery, was struck by a water plug standing about midway between the two main tracks, it appeared that the tracks, were eight feet ten and a quarter inches apart and that the water plug, allowing for the swing of the engine, was within eighteen or nineteen inches of the side of the gangway of the engine.
    The tracks at the place where the accident occurred might have been placed further apart, but there was no evidence that the Water plug in question was not located in accordance with the best- and most approved methods of railroading or that it was not located in precisely the same place at which all other-railroad companies placed similar appliances.
    
      Held, that the defendant was not negligent.
    
      Semble, that as it appeared- that the deceased had passed this water plug almost, daily for twenty years, and that the accident occurred in broad daylight, when the deceased had full opportunity to see the water plug, the view of which was. unobstructed, it might properly be. held as matter of law that he assumed the risk.
    Appeal by the plaintiff, Mary 0. Murray, as administratrix, etc., of William H. Murray, deceased, from a judgment of the Supreme-Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga On the 12th day of March, 1900, upon the dismissal of the complaint by direction of the court after a ,trial before the court and a jury at the Onondaga Trial Term.
    The action was comnienced on the 17th day of - July, 1899, to recover damages sustained by the next ■ of kin of the plaintiff’s intestate, on account of his death, which occurred on the 29th day of - June, 1899, as is alleged, through the negligence of the defendant.
    
      Za/wrence T. Jones and Frank F. TTowng,- for the appellant.
    
      Frank Hiscock, for the respondent.
   McLennan, J.:

The facts in this case are not in dispute, and so far as material may be very briefly stated: Plaintiff’s intestate had been in the employ of the defendant continuously for twenty-eight or twenty-nine years-prior to the accident (June 29,1899). He commenced work as one of a hand car crew at Herkimer, and continued to work in that capacity for about five years.' He was then employed as brakeman on freight trains running between Utica and Albany, but just how long he remained in that service does not appear. When he ceased to work as brakeman he was employed as fireman, and was engaged continuously for twelve years upon engines running between East Syracuse and Albany. He then became engineer, and continued in that employment between East Syracuse and Albany for eight or nine years, and until the time of his death.

It will thus be seen that the deceased was entirely familiar or at least had every opportunity to become familiar with the track and. structures of the railroad of the defendant between East Syracuse and Albany.

On the day of the accident the deceased started with his engine-at Ravena, the eastern end of the Mohawk division of the West Shore railroad, to go west; went as far as Fullerton’s Junction; crossed over on to the New York Central tracks proper, and proceeded' west to the place of the accident, which was a short distance west of Hoffman’s Station. At this point the plaintiff’s intestate was-leaning out Upon the side of-his engine for the purpose of examining some parts of the machinery, and while thus engaged he was struck by a water plug which stood midway between the two freight tracks; he was knocked from his engine to the ground, and received injuries which caused his death soon after. The water plug stood midway between the two freight tracks Nos. 3 and 4, and four feet one and three-fourths inches from the rail of the track upon which the engine was. The distance between the inner rails of freight tracks 3 and 4' is eight feet ten and one-fourth inches. The water plug is several inches in diameter, and is of sufficient height so that, when swung around over the water tank of the engine, it will discharge water into it.

At the place where the water plug in question was located there was a level space upon either side of the outside tracks of defendant’s railroad, so .that there was no physical difficulty in having the space between the tracks greater than it was. The accident occurred, in broad daylight, and there was nothing to obstruct the plaintiff’s view of the water plug, or to prevent him from seeing it if he had looked. •

The plaintiff’s claim is that the defendant was negligent in permitting this water plug to. be so close to the track on which the •engine of the deceased was. For the purpose of supporting, that proposition evidence was given tending to show that where water plugs were located upon the defendant’s railroad between side tracks, or between a side track or switch and the main track, such tracks" were sometimes further apart than were the tracks at the place where the accident occurred. It was not shown, however, that at any place where a water plug is located between the main tracks of the defendant’s railroad, or between the main tracks of any other railroad, the tracks are further apart than .at the place in question. There is not a word of evidence to indicate that the situation, at the water plug which struck the deceased was in any respect different from what it is at all other places on the main tracks of " defendant’s railroad where water plugs are located, or different from What it is upon any other railroad.

It appears that the regular distance, between the main tracks of defendant’s, railroad is seven feet. As we have seen, the distance between the two freight tracks at the place in question was eight feet ten and one-fourth inches. The evidence shows that the gangway of the engine where plaintiff’s intestate stood at the time of the accident, extended out two feet, two inches beyond the-track, and-the engine while in motion, it is said by one witness, will rock -or swing from side to side four or five inches, which would bring the side of the gangway to within eighteen or nineteen inches of the water plug. Upon this evidence we think the trial court was el early justified in determining that the plaintiff had not established any actionable negligence on the part of the defendant. ■ - •

The facts in the case of Benthin v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 303) differ from the facts in the ease at bar in •every essential respect. In that case the engineer, while looking out of the side of his engine for the" purpose of ascertaining whether a journal on a car was smoking, was struck by a telegraph pole of an independent company, which, although located forty-nine inches from the track upon which the engine was, was, because of its leaning over, only about four inches from the side of the locomotive upon which the deceased stood, and it appeared that there was unoccupied land upon which the pole might have been set twelve or thirteen feet away from the track ; that the telegraph poles to the east and west of the pole in question were located twelve or thirteen feet away from the track, and it was held in that case that the negligence of the defendant in permitting the pole to remain in the position in which it was was a question of fact for the jury. The court says, Justice Follett writing the opinion : “Itis alleged in the complaint that the defendant was negligent in permitting this pole to stand within forty-nine inches of the south rail of its track, which negligence it is alleged, was the cause of the death of the plaintiff’s intestate. The evidence shows that the telegraph poles east and west of the pole in question were from twelve to thirteen feet distant from the nearest rail, and that there was sufficient unoccupied land so that this pole might have been set twelve ■or thirteen feet from the track. The pole formed no part of any ■structure belonging to the defendant’s road and necessary for its operation, and the question is not the same as presented by the nearness of the sides of bridges and like structures to passing cars.”

The learned justice also calls attention to the fact that in that case whether or not the night when the accident occurred was so foggy and dark that objects could not be distinctly seen for any considerable distance was a disputed fact.

In the case at bar, if the plaintiff had shown that other water plugs located between the main tracks of the defendant’s railroad, or those located between the main tracks of any other railroad company, were further away from the tracks, so that it could be said, judging from thé practice of the defendant br of other well-managed railroad corporations, that it was not good or approved railroading to locate water plugs between the main tracks when placed so near together as they were at the place of this accident, there would have been evidence of defendant’s negligence. The rule is well settled that a railroad company is not required to furnish its employees an absolutely safe place in which to work or such a place tliat under no circumstances can injury result. The company is. only required ’to furnish such appliances as are in general use and such as are regarded as. suitable and have been adopted by railroad companies generally.

As is said in the head note in Sisco v. Lehigh & Hudson River R. Co. 145 N. Y. 296): “ An employer does not undertake with his employee to use the very best appliances, nor is he called upon to discard machinery reasonably suited for his. business, although there may be other and safer machinery; at least when the appliances, and machinery used by him are in common use in the business; he is simply bound to exercise reasonable care in providing machinery and appliances in view of all the circumstances.”

In that case the plaintiff’s intestate, a ■ brakeman, while climbing up a ladder on the outside of one of the cars Of a moving freight train, came into collision with a mail crane and was seriously in jured. It was claimed that the defendant was guilty of negligence in placing the crane too near the tracks. There was no evidence that the crane in question was placed nearer the tracks than the cranes on other railroads or that it was practicable to place one at a greater distance and have it answer the purpose. It was held that there was no evidence authorizing the submission to the jury of the question of negligence.

It may be said that it was practicable to have placed the tracks at the place, where the water plug in question was located further apart, because, as we have seen, there was no physical difficulty in so doing, because there was enough unoccupied land to the north; but to accomplish that purpose the four or five tracks located at that point'would all have to be rearranged and put further apart. That, however, would only have guarded against accident from a single water plug; and, if such precaution was necessary with reference to it in order to' relieve itself from negligence in case of accident, the defendant would be compelled to increase the distance between the main tracks upon the entire length of its road wherever a water plug is located, and this, notwithstanding the fact that the defendant, so far as appears, has located them precisely as they are located, by all other railroad companies and in accordance with the most approved methods and plans.

The case of Brown v. N. Y. C. & H. R. R. R. Co. (42 App-Div. 548) is also relied upon by appellant’s counsel as authority for the proposition that the defendant’s negligence in the case at bar was a question for the jury. In that case, which was decided by this court, the plaintiff soughtto recover damages for the death of her intestate, a fireman employed upon one of defendant’s locomotives, because of the fact that a mail crane was placed between the track on which the deceased was and the track next south, in such close proximity to the track on which the locomotive of the deceased was that its bow extended within seven inches of the locomotive; so close that the head of the deceased was liable to come in contact with the crane, if for any purpose it was projected more than seven inches beyond the south side of the gangway of the engine while passing the same. It also appeared in that case, and stress is laid upon the fact by the justice writing for the court, that it was feasible to have located the mail crane further from the track, and also that at the time of the accident the crane was not perpendicular; and that if it had been instead of leaning over toward the track, as it ■was, the distance from the gangway of the engine to it would have been eleven and one-fourth inches, instead of seven inches. It also appeared in that case that at least one mail crane located near the village of Clyde, erected between the main tracks and for the same purpose, was actually four inches further away from the track upon which the locomotive of the deceased was than the mail crane in question. Under the circumstances of that case this court concluded that defendant’s negligence was a question for the jury, and the judgment entered upon its verdict was affirmed. The court said,, however, in that case (p. 553): “We do not think the evidence bearing upon the question of the defendant’s negligence relieves the case from all doubt, nor are we by any means certain that, upon that evidence, we should have reached the same conclusion as did the jury; but, at the same time, such evidence cannot,.in our opinion, be said to be altogether destitute of probative force, and, inasmuch as it was submitted to the jury in an exceptionally clear and impartial charge,- we are disinclined to hold that it is insufficient to support their verdict.”

■ It is apparent that the court considered that in that case it went to the full limit in holding that the evidence presented a question of fact for the jury as to defendant’s negligence. In the case at bar, as we have seen, the very important element present in that case is absent, to.wit: That other water plugs located between the main tracks of defendant’s railroad, or between the main tracks of any other railroad, were located at a grgater distance from the tracks than the water plug in question. In other words, so far as appears, the location of the water plug in question was made in accordance with the best and most approved methods of railroading, and, so far as appears, is such as is in general use and has been adopted by the best operated railroads of the country. If such was not the case it was incumbent upon the plaintiff to prove the fact. It also appeared in-that case that the mail crane was out of repair,- and on that account was four inches nearer to the engine, and. came to within seven inches of it, while in the ease at bar the water plug stood perpendicular, was in perfect repair, and was at least nineteen inches distant from the engine, even when it was swung over as far as possible. We are not disposed to extend the rule laid down in the case of Brown v. N. Y. C. & H. R. R. R. Co. (supra), and make it applicable to the state of facts disclosed by the record in the case at bar.

Being of the opinion that there was no evidence tending to support the proposition that the defendant was negligent, it is unnecessary to discuss the question of contributory negligence of the deceased, or the question of assumed risk, but in that connection, as we have seen, the deceased had been in the employ of the defendant twenty-eight or twenty-nine years; had passed this structure almost daily for at least twenty years; was entirely familiar with the location of all the structures connected with the tracks of the defendant; the accident occurred in broad daylight, when he had full opportunity to see the water plug, the view of which was unobstructed. Under those circumstances, it would seem that it might very properly be held as matter of law that the deceased assumed the risk, and that for that reason no recovery can be had.

After a careful examination of the. entire record' we are satisfied . that, the learned trial justice was right in granting defendant’s motion for a nonsuit, and that such disposition of the case is not in conflict with any of the cases or authorities cited or relied upon by the appellant. Any other holding would involve the proposition that it is incumbent upon' the defendant, in order to escape the charge of negligence in such cases, to spread all its tracks at every point where a water plug is -located. With as much reason it could he argued that it is under obligation, to increase the width of all its-bridges, which in every case is feasible, only involving additional-expense. In other words, that it is negligence to place any structure so near to a track as to come within twenty inches of the gangway of a locomotive. We think the proposition is not supported by reason or by authority.

As a result of a careful examination of the record and of the authorities, the conclusion is reached that the judgment and -order. appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  