
    John Larson, Appellant, v. The Nassau Electric Railroad Company, Respondent.
    Second Department,
    February 11, 1915.
    Railroad — negligence — injury to motorman — leak in air brake — conductor as fellow-servant — section 64 of Railroad Law construed — reasonable inspection—proximate cause.
    At common law the motorman of a trolley ear and the conductor are fellow-servants.
    Action against a railroad company to recover for personal injuries. The plaintiff, motorman on a trolley car, left his platform after the car had been brought to a standstill and went forward to release the trolley pole of another car ahead, and while thus engaged he was run down and injured by his own car. The ear was standing on a slight downward grade and was equipped with an air brake to which the ah was supplied by a pump operated by an electric motor. There was proof that the ah leaked, although the pump itself was in good condition, so that the brake could only be applied twice without replenishing air, while if in perfect condition the brake could have been set several times. While plaintiff was engaged with the other car, his conductor pulled down the trolley pole on his own car to reverse the direction in which the ear was to run, and thus cut off the electric current which worked the automatic ah' pump, with the result that the reduced air pressure on the brake allowed the car to move forward.
    
      BLeld, that, even assuming that the conductor was a vice-principal, there was no proof of negligence upon bis part which warranted a recovery. This, because there was no proof that the conductor had any knowledge of the ah leak, or proof that the pump was working when he removed the trolley pole, or proof that he knew that the plaintiff had left the ear to adjust the trolley on the car ahead, that not being part of plaintiff’s duty.
    As there was no “.direction” or “ control” in the act of the conductor in removing the trolley pole from contact with the wire, he was not a vice-principal acting on authority which was “conferred by or proceeds from superior authority.”
    In any event there was no proof casting liability upon the defendant for the alleged defect in the brake, as mere proof of the accident itself did not disturb the presumption that the master had discharged his duty.
    Before liability could be cast upon the master the brake must have been out of order for a period that would justify the imputation of lack of proper inspection. Such imputation does not exist where the plaintiff himself testified that he did not notice that there was anything unusual about the brake until he had driven the car for some distance.
    There was nothing perilous in the leak itself, as it set the automatic pump working sooner than usual; and especially was this so where there was also a hand brake on the car which could have been used by the plaintiff.
    There can be no recovery on the ground that the master failed to inspect the car immediately before it was sent out; when there is no proof that the defect was then in existence.
    Section 64 of the Railroad Law, providing in substance that where an employee is injured by reason of defects in ways, works or machinery, etc., and the defect could have been discovered by reasonable inspec tion, the master shall be deemed to have had knowledge thereof, and that proof of the defect shall be prima facie evidence of negligence, does not insure the employee, nor does it make the proof of a defect conclusive as to negligence. It applies only to such defects as could be discovered by reasonable inspection, thus involving the qustion of the duty of the master.
    Mere proof that an inspection “might” have disclosed the defect is not sufficient," for the question of reasonable inspection is involved.
    
      It seems, that as this peculiar accident was not within the ken of reasonable prudence and foresight, proximate cause was not established by the plaintiff.
    Thomas and Rich, JJ., dissented, with memorandum.
    Appeal by the plaintiff, John Larson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of June, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.
    
      Martin T. Manton [ Vine H. Smith with him on the brief] for the appellant.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
   Jenks, P. J.:

This is an action at common law for negligence brought against a master by a servant, who invokes section 64 of the Railroad Law and section 202a of the Labor Law. The plaintiff was dismissed at the close of his case.

The defendant’s street surface railway was worked by the trolley system. Plaintiff, a motorman, left his car at standstill and went forward for 4 or 5 feet to another car, to release the trolley pole of the forward car from contact with a circuit-breaker so that the motorman of that car could drive it forward. As plaintiff stood within the tracks, he was run down by his own car. The theory of the plaintiff is that this car started because its air brake, which the plaintiff had set, failed to hold it and there was a slight grade downwards. And his proof is that the air brake leaked so that the brake could, be applied twice only, without replenishment of air, instead of four or five times or even ten times, as was usually the case. The brake was replenished with air by an automatic pump in the car, worked by the same electric current that furnished motive power to the car. There is no contention that this pump was not in good order. But after the plaintiff had left his car to go forward, his conductor, after his passengers-had left in transfer to this forward car, went down from the platform and pulled the trolley pole of his car from the overhead electric current wire and thus cut off the electric current which worked the automatic pump, so that, when the leakage gradually reduced the pressure on the brake, the pump could not restore the pressure required to make the brake effective.

Under the common law, the plaintiff and his conductor were fellow-servants. But the plaintiff insists that the conductor was a vice-principal under the provisions of section 64 of the Railroad Law. This contention rests specifically upon the bit of evidence elicited from the plaintiff, that ordinarily the conductor of a car handles the pole of it. I will assume for the discussion that the conductor was a vice-principal. Even so, I think that there is no proof of negligence. It is not shown that the conductor had or should have had any knowledge of the alleged leakage. There is no proof that the pump was working when the conductor removed the trolley pole. There is no proof of the time when it had worked last. It is an extreme contention that the conductor must have known that the brake leaked because during the trip the pump worked after 2 applications of the brake, instead of a greater number. It does not even appear that the conductor in his position could héar the rattling noise that indicated that the pump was in motion. It is true that the conductor, called by the plaintiff, testifies, “ Not thinking at the time that we had not cleared the crossover, I unconsciously * * ' * pulled the pole from the wire.” But “unconsciously” does not indicate that he knew if he pulled down the pole that the car would or could move. It refers to the fact that he forgot, as he says, that the car had yet to continue on its way over- the crossover before the pole should be shifted for the return trip. There is no proof that the conductor knew that the plaintiff had left the car at all. There was nothing in the situation that could- have charged him with knowledge that the plaintiff had left the car to adjust the pole of the forward car, for it was the duty of the conductor of that car to adjust it.

I think that the conductor was not a vice-principal. Thomas, J., writing for this court, said that a conductor was a vice-principal as to his motorman in the matter of directing him, and a motorman was vice-principal as to his conductor in directing the car; that the master speaks through the conductor and acts through the motorman. (Simons v. Brooklyn Heights R. R. Co., 142 App. Div. 36.) This conductor was adjusting a part of the motive power system. The act was not done, in physical control or direction of the car, but was done to put the car in a condition so that it could be moved in the direction required by its return trip by the motorman, who was in that respect the vice-principal. (See Hart v. N. Y. C. & H. R. R. R. Co., 205 N. Y. 321. See, too, Gorman v. Brooklyn, Queens County & S. R. R. Co., 147 App. Div. 21.) There was no direction or control in this act of the conductor that was “conferred by or proceeds from superior authority” (See Hallock v. New York, O. & W. R. Co., 197 N. Y. 450), as if, e. g., the conductor had signaled to the motorman to drive the car.

I fail to see any liability cast on the defendant for the alleged defect in the brake. I will consider the question first without regard to section 64 of the Railroad Law. Mere proof of the accident did not disturb the presumption that the master had discharged his duty, and before liability could be cast upon the master the brake must have been out of order for a period •that would justify the imputation of lack of proper inspection. This proposition is stated and fortified by authorities by Oarr, J., writing for this court in Schlappendorf v. American Rail way Traffic Co. (142 App. Div. 554). The plaintiff took charge of this car at Thirty-sixth street, a point in the trip, in relief of a fellow-motorman. He testifies that at that time the air pressure indicated was usual, and that he did not notice the “ something unusual until he was on his way from Thirty-sixth to Sixty-ninth street. The “something unusual” was that the pump worked after fewer applications of the brake than was usual with such brakes. For aught that appears, the leak may have developed first after the car had left Thirty-sixth street. We cannot infer that inspection even at the outset of the trip, or even during the trip until after the car had left Thirty-sixth street, would have shown this defect. How could there be any imputation of lack of proper inspection in this case unless it was founded upon the proof that the leakage developed during, the trip ? It seems to me that the obligation of master and servant could not require any such extreme precaution as to have inspection during each trip. There was nothing perilous in such a leak, for the result thereof was but to set the automatic pump working sooner than was usual. Moreover, there was a hand brake on this car. Indeed, the plaintiff admits that if he had set the hand brake when he left the car at standstill, the car could not have come down upon him. In De Graff v. N. Y. C. & H. R. R. R. Co. (76 N. Y. 130) the court intimates that inspection of brake chains on a steam railroad during every trip would be unreasonable. But it has been suggested that there should have been inspection before a car was sent out. In this case, as I have said, there is no proof that the defect was in existence at such a time. But aside from this lack of proof, it seems to me that this requirement would put too great a stress upon a master in relation to his servant. We are ignorant as to whether- there was inspection or not, because the plaintiff was dismissed, and, therefore, the defendant was not called upon for any proof. There is no direct proof to show what inspection was practicable. But we may, perhaps, infer from the evidence of plaintiff’s sole expert as to a kind of inspection that was possible. The plaintiff’s expert testifies that he did not know whether such a leak could be discovered even by running the car for two blocks or for less than six blocks, i. e., whether it could be discovered that the air was going out “faster than it should.” In the light of this testimony it would follow that the duty, if any, owed to the servant would be a trial trip of every surface car for at least six blocks in order to ascertain whether the air brake “ leaked.” When we remember the character of the car, its equipment with a hand brake as well as an air brake, that the sole result of the leak was to bring the automatic pump into play more frequently, and that, therefore, the defect was negligible, it seems to me that there could not be any legal obligation upon the master to make such an inspection. In addition to the case last cited, see Louisville, etc., Ry. Co. v. Bates (146 Ind. 564, 569); Atchison, T. & S. F. R. Co. v. Ledbetter (34 Kans. 326, 333); Smoot v. Mobile & Montgomery Ry. Co. (61 Ala. 13, 20).

But, as I have said, the plaintiff invokes section 64 of the Railroad Law, that provides: “If an employee, engaged in the service of any such railroad corporation, or of a receiver thereof, shall receive any injury by reason of any defect in the condition of the ways, works, machinery, plant, tools or implements, or of any car, train, locomotive or attachment thereto belonging, owned or operated, or being run and operated by such corporation or receiver, when such defect could have been discovered by such corporation or receiver, by reasonable and proper care, tests or inspection, such corporation or receiver shall be deemed to have had knowledge of such defect before and at the time such injury is sustained; and when the fact of such defect' shall be proved upon the trial of any action in the courts of this State, brought by such employee or his legal representatives, against any such railroad corporation or receiver, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation or receiver.” This statute does not insure the employee; it but affects his right of recovery for negligence. It does not make the proof of a defect sufficient, but only such defect as could be discovered by reasonable and proper care, tests or inspection. It is not a question of defect alone, but of duty also. Before this plaintiff can invoke the statute he must bring his case within it. Mere proof of a defect does not necessarily make it one that can be discovered by reasonable and proper care, tests or inspection. Doubtless there could be such a defect as in itself afforded proof that reasonable and proper care, tests or inspection would discover it. But if the defect is not of such character, and the defect in this case was not, there must be proof that would justify the conclusion that the master failed to exercise care or test or inspection that was reasonable or proper. To prove by a witness that “care” or “inspection” or “tests,” in so many words, and nothing more, could discover the defect, would set the jury free in the field of conjecture or speculation as to whether such “care” or “inspection” or “test” was reasonable or proper. (See Carlson v. P. B. Co., 132 N. Y. 273; Painton v. Northern Central R. Co., 83 id. 7.) I think that after a sound statement of the rule in Ballard v. Hitchcock Mfg. Co. (51 Hun, 193), the court well comments: “ The instructions given, and to which exceptions were taken, went further than this, and required the defendant to show that he had applied all known tests to determine the safety of the boiler. If an obligation as onerous as this rests upon the master, it can only be found in those cases where the hazard is great, and where it is shown that known tests exist and could be applied to discover any latent or concealed defect, and to guard against the results which might reasonably be expected to flow therefrom, and that the master had failed to apply them. (Cahill v. Hilton, 106 N. Y. 512.) In this case we find no evidence showing what known tests existed which the defendant could apply to discover the alleged defects and which were omitted; and the jury were left to determine of their own volition what tests, in their judgment, the defendant ought to have applied.” In Palmer v. D. & H. C. Co. (120 N. Y. 176), speaking of inspection, Bradley, J., says for the court: “It must in view of the circumstances appearing by the evidence, be one of fact for the jury to determine upon proper instructions relating to the degree of care imposed upon the company; and while it is true that the question of fact so presented is somewhat speculative in the sense that it is not measured by any definite rule, it must nevertheless become a matter of judgment to be expressed by the jury and founded upon the evidence.” (See, too, Jarvis v. Northern N. Y. Marble Co., 55 App. Div. 215.) The case is defective in this respect, for the sole bit of evidence on this subject is contained in the following question asked by the plaintiff of his expert: “Are leaks discoverable upon inspection % A. Yes, sir.” Conceding, in all fairness, that the leaks referred to are leaks in this kind of brake, there is nothing more than the statement that inspection could discover the leaks. But proof that an “ inspection ” might discover the leak does not remove the question of reasonable inspection from the field of speculation or conjecture. With reference to the possible inspection indicated by the testimony of the expert heretofore discussed, I think, for the reasons heretofore stated, that such testimony did not justify the ' submission to the jury of the question whether the defect could have been discovered by reasonable or proper care, tests or inspection.

Finally, I have the gravest doubt whether there could be any liability cast upon the defendant. The plaintiff could not have been injured if he had remained at his post instead of leaving the car as a volunteer to do another’s work, and not then, save that the conductor prematurely cut off the power of the pump, and not then save that plaintiff had omitted to set the hand brake. If the result was not within the ken of reasonable prudence and foresight, then proximate cause is not established. (Beetz v. City of Brooklyn, 10 App. Div. 382; McKenzie v. Waddell Coal Co., 89 id. 415; Saverio-Cella v. Brooklyn Union R. R. Co., 55 id. 98; Stafford v. Canavan Brothers Co., 135 id. 889; Jex v. Straus, 122 N. Y. 293.)

I advise that the judgment be affirmed, with costs.

Burr and Carr, JJ., concurred; Thomas, J., dissented upon the ground that the existence of the defect was prima facie evidence that defendant had not used requisite care, tests or inspection. The action of the conductor is not a ground of liability, but enabled the negligent omission of the defendant to come into play, with whom Rich, J., concurred.

Judgment affirmed, with costs. 
      
       See Consol. Laws, chap. 49 (Laws of 1910, chap. 481), § 64; Consol. Laws, chap. 31 (Laws of 1909, chap. 36), § 202a, as added by Laws of 1910, chap. 352.-— [Rep.
     