
    John F. Neary, Respondent, v. Development and Funding Company, Appellant.
    Fourth Department,
    July 11, 1911.
    Master and servant — negligence —injury hy car binding upon track— proof not justifying recovery — erroneous refusal to charge.
    Action by a servant to recover for personal injuries received while pushing a dump car on a narrow gauge railroad track in his master’s factory, owing to the fact that the car bound on the tracks and stopped so that a fellow-servant coming behind him with another car pushed it against him. The plaintiff claimed that the curvature of the switch tracks leading from the main track was so great that a car in rounding the curve would bind and that the master was negligent in n'ot giving said tracks less curvature. The tracks had been used in the master’s factory for many years without accident resulting from excessive curvature and it was not ' shown that persons conducting a similar business had better or safer methods of trackage. Evidence examined, and held, insufficient to justify a finding of negligence on the part of the master.
    Where in such action it is a question of fact as to whether the car which the plaintiff’was operating stopped while rounding a curve as alleged, or whether it stopped on a straight portion of the track, there being no contention that the straight portions were defective,, it is error for -the court to refuse to charge that if the car was not stopped by binding upon the curve but upon the straight portion of the track, the master was not negligent.
    Appeal hy the defendant, the'Development and Funding Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the'23d day of December, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the-31st day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes..
    The action was commenced on the 8th day of May, 1909, to recover damages sustained by the plaintiff alleged to have been caused solely through the negligence of the defendant.
    The defense of the ■ defendant was and is that it was not guilty'of actionable negligence. It is also urged upon .this appeal that the learned trial judge committed reversible error in refusing to charge as requested by appellant’s counsel, and that the verdict is excessive. .
    
      Alfred L. Becker and Hugh E. Rourke, for the appellant.
    
      Augustus Thibaudeau and Eugene M. Ashley, for the respondent.
   McLennan, P. J.:

At the outset it is important to consider whether the plaintiff has established a cause of action against the defendant, even if plaintiff’s version of the transaction and the circumstances attending the accident be interpreted most favorably to him. Concededly, at the time of the accident the plaintiff was in the employ of the defendant; that at the time he was employed in defendant’s caustic soda and bleaching powder manufactory at Niagara Falls, N. Y.; that on the third floor of the building there was a railroad track of narrow gauge with a number of switches leading from it to holes in. the floor; that the plaintiff when injured was engaged in using upon said track a small four-wheeled dump car for the purpose of conveying lime from the chutes to holes in the floor, through which' the- lime was to be dumped into the chamber below where the bleaching was done. While plaintiff was so engaged-another car operated hy another man was pushed against him causing- his injuries.

The learned trial justice submitted the question of defendant’s negligence to the jury as follows:

“The claim of the plaintiff [is] that these tracks and the switches m connection with them were so improperly constructed that a car running along these tracks, or being shoved along these tracks, was liable to be caught and stopped in its movements, and that that was what caused the sudden stopping on the night in question, and that the other car, pushed or moved by his co-employee, was run against him and pinched him, and caused the injuries which he complains of.”

No question was submitted to the jury as to whether or not the cars should have been equipped with brakes or any question as to the promulgation of rules or as to the instruction of ' the plaintiff in the premises. So that the important question is: Was the defendant guilty of negligence because it did not construct the tracks leading from the main track in such manner that in going around a curve a car would not be stopped and thus permit another car to run into the person operating the first car? ■'

We think the evidence wholly fails to justify the conclusion that the defendant was negligent because it had not provided a less Curvature in the switches leading from the main track. There is no evidence indicating or tending to indicate that the curvature established by the defendant Of the switches leading from, the main track was unreasonable or dangerous except for the fact "that the car which the plaintiff was operating at the time in question bound and stopped. Of course, it is ánd' must.be perfectly-well understood that a car of the character in question, or even a steam car, going around a sharp curve, will bind and its speed be retarded. 3h this case the car was stopped, and another car, operated by a coemployee, who did not observe the stoppage of the first car, ran into the plaintiff," who was operating such first car.

We think the. evidence wholly fails to justify the conclusion that the defendant was guilty of negligence' because it did not provide switches leading from the main track of .its factory with less curvature than that employed by it. Indeed,- such tracks with such curvature had been used. by.the defendant for years, so far as appears, without any accident- having resulted because of such excessive curvature.

There is no evidence tending to show that in the prosecution of its business' the defendant should have provided a system of tracks with less curvature or other than it did provide in the premises — nothing to show that any' other corporation in the conduct and management of such business'had devised a better or safer method of trackage'and transportation than had the defendant.

The proposition, -even according to the plaintiff’s theory, is a very simple one. A track or switch which had been used for a long time to enable an employee to push his car onto or from the main track at the time of the accident became so bound on the curve that it momentarily stopped and the plaintiff was unable to push it forward. A coemployee following him with another car, without observing that the car which the plaintiff was pushing had stopped, ran into him and the accident in question occurred.

A request to charge, submitted by appellant’s counsel, was to the effect that if the car which the plaintiff was operating stopped not by binding upon the curve but upon a straight track the defendant was not guilty of negligence. The court, in substance, refused to so charge, and. by that refusal we think the court committed reversible error. Under all the evidence we think it was-a question of fact as to whether the car which the plaintiff was operating stopped when going around the curve which it is alleged was negligently constructed or whether it stopped on the straight track. Certainly, if it was stopped not by reason of the improper construction of the curve, there being no complaint made as to improper construction of other parts of the tracks, the defendant was not guilty of negligence. We think that question is squarely raised by the request to charge, and that the refusal of the trial judge to charge as requested constituted reversible error.

Considering all the evidence, we have reached the conclusion that the plaintiff" failed to establish actionable negligence on the part of the defendant and that, in any event, reversible error was committed by the learned trial judge in refusing to charge as requested by defendant’s counsel in the particular to which attention has been called.

Entertaining those views, .it is unnecessary to express an opinion - as to whether or not the verdict rendered was excessive.

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

All concurred; Robson, J.., on. last ground stated in opinion only.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  