
    Delia Filbert, as Administratrix, etc., of William Filbert, Deceased, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.
    
      Negligence—injury to a braheman crushed in a collision between two freight cars— when he is properly nonsuited.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, who, while employed as a brakeman on one of the defendant’s trains, was crushed, between two freight cars in consequence of a collision between the train on which he was employed and another train belonging to the defendant, it appeared that the .cars between which the intestate was crushed were built with automatic brakes and couplers and without bumpers, in accordance with a plan of construction frequently adopted. There was no evidence that cars so constructed were less safe than those supplied with bumpers, nor that there were any defects in the materials or in the construction which could have been discovered by the exercise of ordinary care and inspection. It further appeared that it was the' duty of "the intestate to be on top of the cars, and no explanation was given of his presence between them. Held, that the plaintiff was-properly nonsuited.
    Appeal by the plaintiff, Delia Filbert, as administratrix, etc., of William Filbert, deceased, from a judgment'of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 2d day of March, 1903, upon a nonsuit granted by the court after a trial at the Dutchess' County Trial Term.
    
      
      Robert H. Barnett, for the appellant.
    
      Walter C. Anthony, for the respondent.
   Woodward, J.:

The plaintiff in this action was nonsuited, and she is entitled to a . liberal construction of the evidence in support of her theory of the case, but under the most liberal of rules we are unable to discover any cause of action.

William Filbert, plaintiff’s intestate, was engaged as a brakeman on one of the defendant’s freight trains on the 20th day of October, 1899, and on that day was crushed between two freight cars, owing' to a collision between the train on which he was employed and another train of the defendant. The alleged negligence upon which reliance is placed is that the defendant did not provide the intestate with a reasonably' safe place in which to perform his services, the theory being that there was a defect in the construction of .the two cars between which the plaintiff’s intestate was caught and killed. These cars were equipped with automatic brakes, and the plaintiff’s own witness testified that these cars “ were not built with bumpers.' It is a fact that freight cars are now built usually and frequently without bumpers.” There was no modification of this testimony, nor was there any evidence that cars constructed upon the model of those in use on this occasion were less safe than those supplied with bumpers. ’ The case was equally devoid of evidence that these particular cars had any defects in the details of their construction, or that there were inherent defects in the materials. We thus have the case of cars constructed upon the usual and frequently accepted plans, with no evidence that such cars were inherently more dangerous than other- cars commonly in use, with no evidence that there were any defects in, the materials or in construction which could have been discovered by the use of ordinary care in inspection, and yet because the plaintiff’s intestate in a collision was caught between two of such cars and crushed to death, an effort is made to go to the jury upon the theory that the defendant was negligent in not providing cars which would withstand the force of the collision and keep the cars a sufficient distance apart to protect -the brakeman who happened to be between them.

But if there was ground for negligence in the fact that the cars did not withstand this' impact of the collision, the case would still be deficient' in evidence. The evidence is that these cars were equipped with automatic couplers, which did not require brakemen to go between them except in those instances in which the coupling failed.to work, and there is not only no evidence of any .defect in the coupling, but it appears that the train was entirely coupled up and had been running for a considerable distance, and that the rules of the defendant made it the duty of the head brakeman (this being the position of plaintiff’s intestate), as yard limits were approached, to be at the head end of his train and on top of the cars. The evidence is that the train on which the plaintiff’s intestate was employed was approaching the yard limits at Hopewell Junction, N Y.; that he was within a few hundred feet of such yard limits when the accident occurred, and there is not the slightest evidence to show that he had any reason for being between these cars, or that the defendant had required him to be there. His place to work was on top of the cars and, in the absence of some evidence explaining his position between the cars, there is no possible foundation for a judgment in favor of the plaintiff, ■ because there is no ground for an inference of lack of negligence contributing to the accident. .

Various offers of evidence in the form of hypothetical questions were rejected upon the trial, and very properly, for in no instance did the questions rest upon a basis supported by the evidence, and if all of the evidence had been admitted, and it had met the fullest expectations of the plaintiff’s counsel, it could not have justified a submission of the case to the jury. The defendant, in the exercise of reasonable care to provide a reasonably safe place to work, is not bound to provide freight cars which cannot be crushed together in a collision, and especially so when there is no evidence to show that the defendant required the employee to work between such cars. Conceding that if there had been a necessity for the plaintiff’s intestate to go between the cars there might have been some duty to see that the cars were in proper condition, there was no such duty imposed upon' the circumstances disclosed by the evidence in this case, where the train was coupled up and had been run between two stations at least, and it was concededly the duty of plaintiff’s intestate at the point where this accident occurred to be on top of the cars. No reason appears why he should not have been on top of the cars, and whatever duty may have been owing to some one who was required by his duties to be between the cars, no such', obligation existed under the facts of this case, and all of the evidence sought to be brought out in' reference to the probable speed of trains and the amount of resistance which properly equipped cars might be expected to withstand, .was immaterial and was properly-excluded: . ■

The judgment appealed from should be affirmed," with costs.

Bartlett, J., concurred in result.

Judgment, unanimously affirmed, with costs.  