
    (87 Hun, 612.)
    LUCCO v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. Injury to Employe—Negligence.
    A railroad company is chargeable with negligence where it uses in a train for distribution of rails a car with a drawhead broken off, but for . which an employe on the train would not have been injured.
    2. Same—Contributory Negligence.
    One who, while working for the first time on a railroad, and after being employed only an hour, is injured, in throwing rails off a car, by a rail projecting from a car in the rear by reason of the absence from the car of a drawhead, is not chargeable with negligence for having stood on the platform of his car, though directed not to do so, he not having been warned of any danger.
    Appeal from circuit court, Monroe county.
    Action by Marco Lucco against the New York Central & Hudson River Railroad Company for personal injuries. From an order denying a motion on the minutes to set aside a verdict for plaintiff, and for a new trial, defendant
    appeals.
    Affirmed.
    Argued before LEWIS, BRADLEY, WARD, and WERNER, JJ.
    Albert H. Harris, for appellant
    Norris Bull, for respondent
   BRADLEY, J.

The plaintiff received an injury which he charges was occasioned by the negligence of the defendant. He went into the service of the defendant to assist in unloading steel rails from 10 flat cars, which were moved by an engine for the distribution of the rails along the track. When the train reached the point where they were wanted, rails were thrown from either side of the cars. This was repeated when the train moved its length forward. Sixteen men were engaged in the work. At the time of the accident the plaintiff was at the rear end of the car next to the engine, engaged in the act of lifting a rail, to assist in throwing it from the car. His left foot was then resting on the platform of the car, and his leg was caught between a projecting rail of the next car and that upon which he stood, and was injured. When the latter car was brought into requisition for service on that day, it was defective, in that the drawhead of the rear end of it had been broken or pulled out, and was entirely gone from the car, and this car was connected and held to that next to it by a chain.

So far as the plaintiff’s injury was attributable to the defective condition of the car, the defendant was chargeable with negligence. The first inquiry, therefore, is whether such conclusion was warranted by the evidence. The chain by which the cars were coupled did not permit the separation of them quite as much as would the use of drawheads, and when the train stopped there was nothing between them to slack or stay their coming together until the contact of the bumpers. It seems that the intermediate movement of the train was short and slow for the purpose in which it was employed. At the time of the plaintiff’s injury the engine had stopped, and the men were proceeding to cast off a rail from the car, when the one in rear of it, moving forward, came in contact with it. The inference is fairly permitted that the resistance of the draw-heads, if the cars had been coupled by means‘of them, would have kept the cars so far apart as to have protected the plaintiff against the consequences to him which followed. The evidence was such as to support the conclusion that the plaintiff’s injury would not have been suffered if the car had been supplied with a drawhead, and that, in view of the duty resting upon it to use due care in- supplying suitable and adequate apparatus and appliances for the safety of its employés in the service, the defendant was chargeable with negligence, by which this accident to the plaintiff was occasioned. Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. 407. Whether or not negligence on the part of the plaintiff contributed in any degree to the cause of his injury was also a question of fact, upon the evidence. The circumstances of the occurrence, as represented by the testimony of the plaintiff, tended to show that he was free from fault in that respect There was evidence on the part Of the defendant to the effect that he was, through the directions of the foreman, informed of the danger which might result from stepping onto the platform of the car, and directed not to do so, by a person who spoke in the Italian language, which was that familiar to the plaintiff. He, however, denied, by his evidence, that he heard any such warning or direction, and testified that he had no knowledge that the car was defective in the respect before mentioned. This was the first time he had ever been at work upon a railroad, and it appears that he had been engaged only about one hour when the accident occurred. The question of contributory negligence was fairly submitted to the jury by the trial justice, who charged them that “if the plaintiff was informed that it was dangerous for him to stand upon the platform, and he disobeyed the instructions, and put his foot upon the platform, then he cannot recover.” The question of his contributory negligence, as well as that of negligence of the defendant, was properly for the jury.

The defendant’s counsel requested the court to charge that, if the jury found that the accident was occasioned solely by reason of the iron having shifted on the car, the plaintiff was not entitled to recover. The court declined to charge fully as requested, and exception was taken. It is deemed unnecessary to consider that éxception, further than to say that our attention is called to no evidence, and none is found, tending to prove that the rails had shifted any from the position in which they were placed on the cars when loaded upon them. The court was also requested to charge that, if the plaintiff disregarded the warning or direction given to him,—not to place his feet between the rails,—he could not recover, although the jury thought that he was not informed of the reason why the order was given. The court, declining to charge in that language, instructed the jury that if they reached the conclusion that he was directed not to put his foot there, and that if he was informed, if he did put his foot on the platform, what the effect would be if the cars came together, and he disobeyed the instructions, he could not recover. Exception was taken to the refusal to charge as so requested. This was not error. For the purpose of the question, it must be assumed that the plaintiff was ignorant of the defective condition of the car and of the coupling of it with the next one; that he was aware of no danger from those causes; and that he was then engaged in the work at the place assigned to him. It is possible that he may have understood mere directions not to step on the platform as having relation to the method of doing the work, and as not pointing to any danger to him. Then he may have been so busily engaged in the work, and his attention being so occupied with it, that, he not being advised nor having any apprehension of danger, such direction may not at that moment have occurred to him. In the absence from the proposition of the element of reason on his part for the apprehension of danger, the court, in view of the place and under the circumstances in which the plaintiff was then engaged, was not required to charge it.

The suggestion is made that there may have been some other concurring cause of the accident, for which the defendant was not responsible, and therefore the question whether it was the result of such defective condition of the car was matter of speculation. That proposition, in the view taken of the- evidence, is not applicable to the present case, for the reason before stated,—that the evidence permitted the jury to find that the injury would not have been suffered by the plaintiff if the cars had been coupled by means of drawheads, in the usual manner. There was no error in the rulings at the trial to the prejudice of the defendant, and the verdict was fairly supported by the evidence.

The order denying the motion for a new trial should be affirmed. All concur.  