
    Hubbard J. Goodrich, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 22, 1889.)
    
    1. Master and servant — Railroad brakeman — Injury while coupling cars.
    Plaintiff, a brakeman in the employ of the defendant, was injured while holding a straight link to connect cars belonging to another road. The bumper on one was lower than the other, and the staple was broken on one so that the bumper slipped under the other and allowed the deadwoods to come together, crushing plaintiff’s hand. There were crooked links in the caboose which he might have used. Held, that defendant was liable, as plaintiff had a right to assume that the cars were equipped with safe and suitable appliances, and that the coupling appliances were in good order.
    3. Same.
    As it was not within the apparent scope of a brakeman’s duty to examine cars from another road, the defendant had not fulfilled its duty towards its employees by merely furnishing crooked links, which could be used in coupling cars of different heights.
    3. Same — Contributory negligence.
    The question as to plaintiff’s contributory negligence was one of fact for the jury, as he had a right, under the circumstances, to assume that the coupling could be made with a straight link.
    Appeal from a judgment of the general term of the third judicial department, which affirmed a judgment entered upon an order at the circuit dismissing the plaintiff’s complaint.
    This action was brought to recover damages for injuries received by the plaintiff, a brakeman in the employ of the defendant, while engaged in coupling cars. It appeared from the testimony that on the morning of the 17th of October, 1882, the plaintiff and other employees of the defendant were directed to go from Albany to Fishkill and take charge of a circus train, which was to come upon defendant’s road from the New England road. The circus train reached Fishkill about 3 o’clock in the afternoon and was switched onto a side track north of the depot. In the evening, between 7 and 8 o’clock, the plaintiff was directed by the conductor to couple some of the cars of the circus train to some stationary cars further north on the same track, and this he proceeded to do. He stood on the east side of the track as the cars were moving north at a slow. gait. It. was dark, and plaintiff had a lantern. When the cars to be coupled were within a few feet of each other he stepped between them for the purpose of inserting the link, which was in the bumper or drawhead of the stationary car. When the cars were three or four feet apart he discovered that the bumper of the moving car was lower than the bumper of. the stationary car. He testified that he thought by raising the link it would enter the bumper of the stationary car. He took hold of the link with his left hand to raise if up, but found it would not enter the bumper of the stationary car. The bumper of the moving car passed under the bumper of the stationary car, and in attempting to withdraw Ms hand it was caught between the deadwoods and severely crushed The deadwoods were about eight inches on each side of the bumpers. Their purpose was to prevent the cars coming together, and thus afford protection to a person standing between them. The bumper on the moving car was not broken, but hung lower than the one on the stationary car, and lower than it was intended to hang, for the reason that the staple or strap which surrounded it, and in which it played, was broken on one side.
    It is customary in coupling cars of which the bumpers are of different heights to use a crooked link and such links are supplied by the company and were in the caboose which the plaintiff and his fellows took with them from Albany to Fishkill. The link in the bumper at the time of the accident was a straight one. After the accident a crooked link was used and the coupling was made and the car was thus used while on defendant’s road. The bumpers are backed by strong springs and it frequently happens that when the cars meet with considerable force that the bumpers are pressed in upon the springs and the. dead-woods come together, but when the cars approach each other at a slow, or as the witnesses term it “ ordinary ” speed, the bumpers receive the shock and a space is left between the dead-woods of from two to eight inches. It further appeared that in making the coupling the plaintiff’s hand would necessarily be between the dead-woods of the two cars.
    
      Amasa J. Parker, for app’lt; Hamilton Harris, for resp’t.
    
      
       Affirming 3 N. Y. State Rep., 774.
    
   Brown, J.

It was decided in Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y., 462, that a railroad company is bound to inspect the cars of another company used upon its road, just as it would inspect its own cars. That it owes this duty as master and is responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. That when cars come to it from another road which have defects visible or discernible by ordinary examination, it must either remedy such defects or refuse to take them. This duty of examining foreign cars must obviously be performed before such cars are placed in trains upon the defendant’s road or furnished to its employees for transportation. When so furnished the employees whose duty it is to manage the trains have a right to assume that so far as ordinary care can accomplish it, the cars are equipped with safe and suitable appliances for the discharge of their duty and that they are not to be exposed to risk or danger through the negligence of them employer. The defect complained of in this case was obvious and "discernible to the most ordinary inspection and could have been easily remedied.

It is argued by the defendant that it had fulfilled it, duty when it had furnished for the use of its employees crooked links which could be used in coupling together cars upon which the bumpers were of different heights. We do not think that, in this case, that fulfilled the measure of defendant’s obligation. It could not be so held unless it was the duty of the plaintiff to examine and inspect the cars to ascertain whether the coupling appliances were in pro]ier condition. The duty of examination, like the duty of furnishing proper machinery and appliances, in the first instance rests upon the master. Fuller v. Jewett, 80 N. Y., 46; Gottlieb v. N. Y., L. E. & W. R. R. Co., supra. And the degree of vigilance required from a railroad corporation in this respect is measured by the danger to be apprehended and avoided. Elis v. K Y., L. E. & W. R. R. Co., 95 N. Y., 546; Salters v. D. & H. C. Co., 3 Hun, 338.

While in the case of corporations the performance of this duty must be committed to employees, there is no presumption that it rests upon any particular individual. It is not within the apparent scope of a brakeman’s duty, and does not necessarily rest upon him. In the absence of all evidence upon the subject, we cannot therefore presume that the examination and inspection of the particular cars in question had been committed to the plaintiff, and unless it had he had a right to assume that the master’s duty had been performed by those having it in charge, and that the coupling appliances upon the cars were adequate to the performance of his work without extraordinary risk or danger.

It is further contended by defendant that the accident was one of the ordinary risks of plaintiff’s employment, and was liable to happen in coupling any cars. Some evidence to which our attention is called, given by plaintiff on his cross-examination, standing alone would give some color to this claim, but read in connection with the other testimony shows that it is only when the cars are propelled against each other with great force that the dead-woods are liable to come together, and thus endanger the brakeman making the coupling.

The evidence is that when the moving cars are backed upon the stationary car at a slow rate of speed, or at a speed ordinarily used in making couplings, that the bumpers or draw-heads will take the whole shock and the dead-woods will not meet but there will be a space between them of from two to eight inches.

Doubtless the danger of injury arising from the engineer’s backing the train upon the stationary car with great force is a risk which the brakeman must assume and for which the corporation would not be responsible, but that was not the risk to which the plaintiff was exposed.

The evidence is that the train was backing up slowly and at a rate of speed that would not have brought the dead-woods in contact if the bumper had been in order. Because the bumper of the moving car was defective and hung lower than it should have done, it passed under the bumper of the stationary car and permitted the dead-woods to come together.

The defective bumper was thus shown to have been the proximate cause of the accident. It was literally the causa causons. Its immediate effect was to permit the dead-woods of the two cars to come together and the plaintiff was from that cause exposed to a danger not within the ordinary risks of his employment.

This result was traceable directly to the defendant’s failure to provide the moving car with bumpers in good order, and unless the proof showed (which it did not) that plaintiff himself was in some way responsible for that condition of the car, the negligence of the defendant was established.

The question as to the plaintiff’s contributory negligence was, I think, one of fact for the jury. He testified that when the cars were four or .five feet apart he saw that the bumper of the moving car was lower than the bumper of the stationary car. It does not appear that he observed that it would pass under the bumper of the stationary car, or that there was any danger that the dead-woods would come together. On the contrary he appears to have thought that the coupling could be made with the straight link that was in the draw-head. He had a right to assume that fact and that the coupling appliances were in good order. It was only at the moment that the cars were about to collide that he discovered his error.

The court cannot affirm that for such an error of judgment, induced as it was to some extent by defendants’ neglect, he is to be held to have been careless. Under such circumstances, when the whole transaction is the occurrence of a moment, a man is not tobe held responsible if he errs as to the estimate of the danger that confronts him. If he acts the part of a prudent man willing to and intending to perform the duty to which he has been assigned, he has done all that the law demands of him, and whether he acted such a part under the circumstances of this case was for the jury to determine.

The order of the general term should be reversed, and a new trial granted, with costs to abide event.

All concur, except Follett, Ch. J., and Potter, J., dissenting, and Haight, J., not voting.  