
    Frank Strong, Appellant, v. The Rutland Railroad Company, Respondent.
    Third Department,
    September 26, 1907.
    Railroad. — negligence — defective culvert — undermined embankment.
    When it is shown that a railroad did not construct a culvert running beneath its roadbed large enough to carry off floods from rain or melting snow, and allowed it to become stopped with ice so that the embankment became undermined, and too weak to support a passing train, whereby an employee was injured, it is erfef te tiiftofe a vefdiet for the.defendant,
    
      - - A party against whom a verdict -is directed.is entitled to the most favorable infer.ences from the evidence, and all contested facts, are to be treated on appeal as . established in his- favor. '
    It is not contributory negligence, as a matter of law, taran employee on a train to leave his position on the top of the train in violation of a rule, if it be shown that the rule was not brought to his attention, and it is undisputed that his duties frequently required him to leave that position to assist the fireman, that being the usual custom.
    An employee by leaving the top of the train in violation of a rule does!: not, as a matter of law, assume the risk of the--overturbing of the train by reason of the undermining of an embankment by a defective culvert, which risk was not obvious or known to him: _ '
    Appeal by the plaintiff, Frank Strong, from a judgment of- the Supreme Court in favor of the defendant, entered in the office "of the clerk of the county of Franklin on the 24th day of December, - 1906, upon the verdict of a jury rendered by direction qf the court after a trial at the Franklin Trial Term, dismissing the corniplaint.
    
      John H. Booth and Gaylord T. Ames, for the appellant.
    
      John P. Badger, for the respondent.
   Sewell, J.:

This action was brought to recover damages for a "personal injury-alleged to have been caused by the.negligence off the defendant.

At the close of the trial, and pending the decision, of a motion for the direction off a verdict in favor of the defendant, the court submitted to'the jury whether the defendant was negligent, the plaintiff free from- contribntory negligence, and the amount of' damages: After .it had answered these questions favorably to tlie plaintiff, the trial judge directed a verdict for the defendant. Upon . the verdict so directed the judgment,appealed from was entered. The. principal questions in this cáse arise upon the exception taken to the direction. • ■

The answer admits'.that on the ¡said 19th day of March, 1905, one of the defendant’s train of cars, consisting'iof an engine, tender,and freight cars attached, was- going■ westwardly in the -direction' of Malone; that “there existed at-a point about a mile east.'of Malone. "Junction * * * " a culvert in a hollow valley over which ran the track of the defendant’s said railroad; - * * * that,at the time of the alleged accident the roadbed west of the said culvert, and the track thereon, because of the excessive rain that fell during the night of the 18th and 19th of March, 1905, had become partially undermined and weakened, and of insufficient strength to support the engine that hauled the said freight train; * * ‘ * that the embankment or roadbed west of said culvert, and the track thereon, suddenly broke and gave way and caved in, and the engine, tender, and one or more freight cars attached on which plaintiff was employed, were precipitated into the cavity caused. by such caving in of said embankment or roadbed, and were injured and .wrecked.”

The plaintiff, to establish the negligence of the defendant, gave evidence tending to show that, while the culvert was abundantly large for the natural stream, it was not large enough to provide against accidental obstructions,, and that when a flood occurred from rain or the melting of snow, it was not of sufficient capacity to cany off ' the water, in consequence of which it was dammed by the embankment and formed a pond four or five rods across.

We think this evidence was sufficient to justify the inference that the defendant had failed to provide a proper and efficient culvert. But if it be conceded that the opening was of sufficient' capacity, there was evidence tending to show that the defendant' was negligent in failing to exercise reasonable care in inspecting and maintaining the culvert. ' " -

One witness testified that he looked into the culvert after the accident and found a great deal of ice in the culvert; “ I should say that it was one-half full of glacier, I mean ice. I mean solid ice, such as existed up and down the creek. Ice that had the appearance of having formed there * * * during the winter, solid ice.”

Another witness testified that he looked in the culvert the morning of the accident and there was a solid cake of ice which half filled it. Although two of the defendant’s employees testified directly contrary it is quite evident that it was for the jury and not for the court to say whether the defendant had negligently permitted the culvert to be and remain clogged with ice.

A party against whom a verdict is directed is entitled to the most favorable inferences from the evidence, and all contested facts are to be treated as established in his favor. (Higgins v. Eagleton, 155 N. Y. 466; Sundheimer v. City of New York, 176 id. 495.)

We are also of the opinion that the evidence presented a question of fact as to whether the' plaintiff was 'guilty .of contributory neglb gence in leaving his position on the! top of the train-in violation of the printed rule introduced in evidence by the defendant. It did not appear that -this rule was brought to. his attention in any manner and the undisputed- evidence was to the effect that the plaintiff’s duties'frequently required him to leave his position “on top of. the \ train ” and to assist the- firemen. He- testified- that it was the usual custom for the head brakeinan to- ride in the cáb of the engine and the engineer testified-that-they frequently did. - ,

In the absence of any knowledge, of the rule/the plaintiff could not,, in' law, he charged with" negligence or a violation, of dirty in doing what was in conformity with the usual custom of brakemen. Neither could the court say as matter .of law, upon the-facts proved,. that he assumed-the risks.- No doubt the plaintiff,, upon entering the defendant’s employ, assumed and assented to the- Ordinary risks incident- to the service. But it is equally well settled' that' employ- ■. ers, cannot avail themselves' of this assent, unless they have taken reasonable precautions to insure the servant’s safety while in.-the performance of his duties, and there can be no exemption from liability for injuries susta-ined.hy a servant,- when the risk is unknown and the injuries are traced to the employer’s failure- to-take such' precautions. (Ford v. L. S. & M. S. R. Co., 124 N. Y. 493.) On this issue the burden of proof was upon tli'e defendant (Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459), and' it cannot be said that- it conclusively established the fact in - accordance- with its theory. On the contrary, the ündispnted'facts show that the risk was not obvious, that the plaintiff did -not know'of .the dangers in - advance,, and had no opportunity to inspect the embankment -for the purpose of discovering the -defect. Our conclusion, therefore, is that the judgment should be reversed, with cost's to the appellant to abide the . event, and the cáse remitted to thó Trial Term to proceed upon the verdict.

All concurred..

Judgment reversed,’with costs to appellant to abide event, and case remitted to Trial Term,to proceed upon the verdict»  