
    Henry Townsend, Respondent, v. The Fibre Conduit Company, Appellant.
    Second Department,
    December 30, 1912.
    Master and servant — negligence — injury to employee while pushing, car — evidence — defective track.
    In an action under the Employers’ Liability Act brought by a servant to recover foi" personal injuries, it appeared that the plaintiff while pushing a car on a small railway down a slight grade from one part of the defendant’s plant to another, caught his toe under one of the ties, fell and was injured. He testified that the car was loaded so high that he could not see where he was walking. The evidence was conflicting as to whether the ballast had become worn away so that the ties at the place of the accident extended above the surface.
    Held, that a judgment in favor of the plaintiff and an order denying the defendant’s motion for a new trial should be affirmed.
    Appeal by the defendant, The Fibre Conduit Company, from a judgment of the Supreme .Court in favor of the ■ plaintiff, entered in the office of the clerk of the county of Rockland on the lYth day of April, 1912, upon the verdict of a jury. for $3,500, and also from ,an order entered in said clerk’s office on the 13th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      H. B. Bradbury [Julian S. Eaton with him on the brief], for the appellant.
    
      Frank Comesky, for the respondent.
   Hirschberg, J.:

The action is brought by a servant against his master, for personal injuries under the Employers’ Liability Act (Laws of 1902, chap. 600, as re-enacted by Labor Law [Consol. Laws, chap. 31; Laws of 1909., chap. 36], art. 14, as amd. by Laws of 1910, chap. 352). The respective briefs agree in the statement that there is practically no dispute about the facts. The defendant is engaged in the business of manufacturing fibre conduits or pipes from wood pulp, its factory being located at Orangeburg, in the county of Rockland. , Its buildings are connected by what is called “a surface industrial railway,” a road built of small steel rails laid upon wooden crossties, the gauge being slightly less than three feet. On this railway, low, flat cars are moved by the employees by hand in order to carry the product from one part of the plant to the other. The plaintiff’s accident occurred while he was moving a car loaded with pipes down a slight grade. He was pushing the car in the customary way. His evidence is generally to the effect that the pipes extended beyond the top of the flat car so that he could not see where he was walking; that as he came to a curve where the grade was a descending one he was obliged to keep hold of the car with his hands in order to prevent it getting beyond his control; that the ballasting between the-ties had become worn away at the place of the accident so that there were some few inches of the ties above the surface, and that his toe caught in one of the ties, throwing him down and inflicting the injuries complained of.

It was undisputed that the proper construction required the spaces between the ties' to be level with the surface of the ties, and the defendant’s evidence in contradiction to that of the plaintiff tends to establish that the place of the accident was not in the defective condition referred to. The case was submitted to the jury in a charge covering the questions of negligence, contributory negligence and assumption of risk, without exception, and I do not see that the court is required to reverse the judgment and order.

The appellant claims that as matter of law the place where the plaintiff was working at the time of the accident was not ■unsafe, but the cases cited in support of the proposition are clearly distinguishable. In Lendgren v. Erie R. R. Co. (146 App. Div. 504) a judgment of nonsuit was affirmed by this court, but the ground of decision was expressly based upon the fact that the evidence utterly failed to show any defect in the railroad track which was the producing cause of the accident complained of. In Finnell v. D., L. & W. R. R. Co. (129 N. Y. 669) the question presented related to the condition of a steam railroad track, and the decision was placed upon the ground that such tracks are not ballasted for the purpose of making them safe for the employees of the company to walk upon, and that blie failure of the steam railroad company to ballast a side track, used for storing cars and making up trains, was not a breach of any duty owing to employees.

The judgment and order should be affirmed.

Present — Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ.

Judgment and order unanimously affirmed, with costs.  