
    Lewis E. Windover and Lewis T. Cole, as Administrators, etc., of Lyman Windover, Deceased, Appellants, v. The Troy City Railway Company, Respondent.
    
      Negligence — known risks of the employment are assumed by the servant, such as the case of a brake known tobe defective — otherwise as to the necessity of a sandman to sand slippery tracks.
    
    ia.an. action brought to recover damages.resulting from the death of ,the plaintiffs’ intestate caused by the alleged' negligence of the defendant, it appeared that, the deceased, who was a motorman on one of the defendant’s street cars, was proceeding in winter down a very steep grade, upon slippery tracks, and the, car, becoming unmanageable, ran down the incline and into a building, causing an injury to the motorman of which he died. The plaintiffs alleged that the. brake was defective and that the defendant failed to employ a sandman to put sand on the slippery tracks. In regard to the brake the evidence showed that. the deceased had knowledge of the manner in which the brake worked. In support of the claim that the defendant should have furnished a sandman, the plaintiffs offered evidence, Which the court excluded, tending to show that a sahd- ' man Was necessary and that the accident resulted from the fact that none was1 ■ provided, the court holding in effect that it was a-risk of the occupation Which. . the deceased assumed, and nonsuiting the plaintiffs. ' ,
    
      
      Held, that, if the brake was defective or worked hard, the risk was one which the deceased, having with knowledge of that fact remained in the defendant’s employment, had assumed;
    That the' same rule, however, did not apply to the question of employing a sandman, as the deceased could not be said to have assumed the risk arising from the defendant’s failure to supply a sandman, unless he knew that a sandman was necessary to check the speed of the car, which the court could not assume that he did, and that, if he did not know it, the risk, arising from the. absence of the sandman, was not an apparent risk or one which he assumed;
    That the plaintiffs were at least entitled to give the evidence which was rejected, to'the end that the jury might determine whether the instrumentalities which the defendant in fact provided were sufficient to check the car.
    Landon, J., dissented.
    Appeal by the plaintiffs, Lewis E. Windover and another, as administrators, etc., of Lyman Windover, deceased, from a judgment of the Supreme Court in favor of the defendant,- entered in the office of the clerk of the county of Rensselaer on the -14th day-of J une, 1895, upon the dismissal of the complaint directed by the court after a trial at the Rensselaer Circuit before the court and a j™7-
    This action was commenced by the plaintiffs as administrators of Lyman Windover, deceased, to recover damages for the alleged negligence of the defendant by which it was claimed the death of the said deceased was caused.
    On the 28th day of December, 1893, in the city of Troy, N. Y., the said Windover was employed by the defendant, as he had been for several years before, as a motorman on one of its street cars propelled by electricity. At the time he was injured he was in charge of car No. 27, then proceeding in a westerly direction down an incline on Hoosick street in that city. The tracks were slippery• the grade of Hoosick street is steep, having in some places a descent of from eight to nine feet to the hundred, and the car became, unmanageable and ran away down the incline and across River street into a building on the west side thereof. The decedent was so injured by the collision that he died on the next day.
    The alleged negligence of which the plaintiffs complained was that the brake on the car was defective, and also that the defendant failed to employ a “ sandman ” to put sand on the slippery tracks. '
    It was shown that car No. 27 on one occasion before, when under the charge of another motorman, had run away. The plaintiffa ■offered, to show that on another occasion, prior to the injury to Windo ver, another of its ears ran away down the incline of Hoosick street. Also, that the defendant after that occurrence for two or ■three days'had employed aman to put sand on the track, hut had subsequently taken him off; also to show" .that at the time the car ran ■away, prior to the injury to decedent, the power on the car was reversed, but its speed was not diminished, because of the slippery condition of the tracks, there being no sand thereon. The evidence so offered was* on the objection of' the defendant, .excluded by the court. The following proceedings were also had on the trial during the examination of the witness Lewis E. Windover: “ Q. (By the .plaintiffs.) Was there any. sandman provided for the cars running up and down that hill? [Objected to as incompetent and iinma-. teriah] The Court: I' don’t see how it can be made material. If a stranger could know there was no sandman, the deceased must have known it; and, if he knew it, he must have assumed the risk himself, I think. An employee assumes all the apparent risks. I will exclude the matter of the sandman. Mr. Black: I except. I offer to show that the road failed to- provide any man or help with which to put sand upon this track of this railroad upon Hoosick street to assist in the stopping or management of the cars, and that because of that failure the accident occurred which produced Wind-over’s- death. The Court: I suppose yon mean no -sandman was employed at any time prior to the death of the deceased? Mr. Black :. Yes, nor at. that time. [The offer is objected-to as before.] The Court: Excluded on the ground that it was a ■ danger to be assumed; that it was a' condition and fact known to the deceased; [Plaintiff - excepted.] ”
    At the close of the plaintiffs’ evidence, they were nonsuited by the trial court, and from the judgment of nonsuit this appeal is .taken.
    
      Frank S. Black, for the appellants.
    
      Thomas S. Fagan, for the respondent.
   Putnam, J.:

The evidence produced by the plaintiffs to show that the brake on car. Ho. 2.7, on which the decedent was the motorman at the time of" the accident, was defective, was scarcely sufficient to sustain their contention. They were only able to show that, about a month before the injury to Wind over, the brake worked hard; were it otherwise, however, it appeared that the deceased had been in the employ of the defendant as a motorman for several years. If the brake worked hard or was defective, he must have known it. He, therefore, having, with such knowledge of the defect, taken the responsibility of working on the car, and assumed the risk arising therefrom, no liability on account of the brake was incurred by the defendant. (Powers et al. v. The N. Y., L. E. & W. R. R. Co., 98 N. Y. 274; Crown v. Orr et al., 140 id. 450; Monaghan v. N. Y. Central & H. R. R. R. Co., 45 Hun, 113; Odell v. Same, 120 N. Y. 323; Freeman v. The Glens Falls Paper Mill Co., 70 Hun, 530; affd., 142 N. Y. 639.)

Hence, the only question in the case that requires consideration is that arising from the exclusion of the evidence offered by the plaintiffs. The trial court refused to allow the jdaintiffs to show that the corporation failed . to supply a “ sandman ” for cars running on Hoosick street, stating that he would exclude the matter of the “ sandman ” on the ground that, if one was not provided by the defendant, Windover must have known it, and,' therefore, he assumed the risk resulting from the absence of such an employee.

As the trial court excluded all testimony on that subject, of course we cannot know what evidence the plaintiff would have produced if permitted.

It was the duty of the defendant to supply the car on which the deceased was employed as a motorman with sufficient and propel help and with proper appliances and instrumentalities to safely operate it. (Flike v. Boston & A. R. R. Co., 53 N. Y. 549; Booth v. Same, 73 id. 38; Whittaker v. D. & H. C. Co., 126 id. 544; Cuppins v. The N. Y. C. & H. R. R. R. Co., 122 id. 557.)

The decedent, as the employee' of the defendant in the management of the car, had the right to rely upon the assumption that the defendant had performed this ffiuty. He did not in the first instance assume risks resulting from the failure of the corporation to do so. As Andrews, J., remarked in Booth v. Boston & Albany. R. R. Co. (supra, 40): The rule that the servant takes risks of the .service 4 supposes,’ says Lord Cranworth, 4 that the master has secured proper servants and -proper machinery for the conduct of the work.’ . (Bartonshill Coal Company v. Reid, 3 Macq. 275).” If, however, in the service of the defendant, Windover discovered that it had failed to furnish proper machinery and appliances for the car or sufficient- help, and after such discovery voluntarily continued in -the employ of the corporation, under the authorities above referred to, he must be deemed to have elected to have assumed the risks resulting from the' neglect of the. defendant to perform its duty. Thus it lias been held, that a servant of á railroad company cannot recover for injuries resulting from the unskillfulness of his fellow-servant negligently employed by the corporation, if he voluntarily remained in. its service with knowledge of such fact. (Haskin v. The N. Y. C. & H. R. R. R. Co., 65 Barb. 129; affd., 56 N. Y. 608; Laning v. The N. Y. C. R. R. Co., 49. N. Y. 521.) So in this case,, the decedent, having elected to -remain in the service of the defendent with .knowledge of the defective brake, cannot recover from the corporation for an injury resulting therefrom. The risk from the brake was apparent and must have been known to and' voluntarily assumed by him..

But we are' unable to concur- with the view taken by the trial court,, that the decedent assumed' the risk resulting from the- defendant’s neglect to employ a man to place sand on its tracks, in the absence of any. evidence or facts indicating such an assumption: We think the judge should have received the evidence offered by the plaintiffs,, and afterwards have -determined the question^ he ■assumed to decide in advance, if the facts proved by the plaintiffs should have shown that a 44 sandman ” was required for cars of - the. •defendant on Hoosiclc street and that it was negligent in not furbishing such an employee. ■ ' ■ ■ .

• As we have- already said, it was- the duty of the corporation to supply the car-with suitable machinery, appliances and help-'with which to manage-it; and the deceased as an employee in the -first instance could properly assume that it had performed this duty. He was not required to make a critical examination of those appliances, or to entertain doubts as to the cars- being properly, equipped. He knew that the speed of the car could be regulated in. two ways, by the brake and by, .reversing the-.power. He could properly assume, unless lie knew otherwise, that those means provided by the defendant were -sufficient.

There was no evidence produced that he knew that a “ sandman ” was required ; it was not proved that the car had ever run away with him, or that he knew that it or any other of defendant’s cars Lad run away before the accident.

We think the learned trial court was mistaken in assuming as a fact, in advance of the'evidence offered, or which might have been produced, that Windover assumed the risk arising from the failure of the defendant to employ a “ sandman.” Had the court received such evidence,, a state of facts might have appeared showing such an assumption, or, on the contrary, the circumstances might have indicated that the deceased, without any knowledge of the necessity of “ a sandman,” and believing that the defendant, as it was its duty to, had furnished the required instrumentalities to check the speed of the car, had not assumed a risk of which he was ignorant, or the evidence, if received, might have raised a question of fact for the jury as to such assumption. (Laning v. N. Y. C. R. R. Co., supra.)

In 14 American and English Encyclopaedia of Law, 843, it is said : “A servant does not, of course, assume the risk of any dangers arising from unsafe or defective methods, surroundings, machinery or other instrumentalities, unless lie has, or may be presumed to have, knowledge or notice thereof.” In a note on the next page of the same volume it is also stated : “And it may be observed in this connection, that it is one thing to be aware of' defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing to know or appreciate the risks resulting or which may follow from such defects. The mere fact that the servant knows the defects may not charge him with contributory negligence, or the assumption of the risks growing out of them. The question is, did-he know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects, existed. (Cook v. St. Paul, etc., R. Co., 34 Minn. 45; Russell v. Minn., etc., R. Co., 32 Minn. 230.) ”

We think the above quotations,, which are supported by many authorities in the work in question, state the correct principle applicable to such a case as this.

Windover did not assume the risk in question, unless he knew that the power to reverse and the brake were insufficient to prevent the car from running away, and that a “ sandman ” wras required. It could not be properly assumed as a fact, in the absence of any evidence in that regard, that he did know. In the absence of such knowledge, the risk arising from the absence of the “ sandman ” was not an apparent one. In Haskin v. The N. Y. C. & H. R. R. R. Co. (supra) it appeared that the deceased knew of the unskillfulness of his co-employee, and, after such knowledge, voluntarily-remained in the service of the corporation.

We think, therefore, the court below erred in disposing of the case in advance of the evidence that might be produced, and in declining to receive the testimony offered by the plaintiffs.

The question arising in the case as to the contributory negligence of the' deceased was, we think, under the facts shown, clearly for the jury.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Landou, J., dissenting.

Landon, J. (dissenting):

The absence of a sandman was immaterial, because it was not shown that his presence was necessary. It was shown that the car was equipped with a distributing sand box, from which the motorman could apply sand to the tracks, and defendant’s counsel did not offer to show that a sandman was also necessary. It would not be proper to allow the jury to infer the necessity of his presence in the absence-of evidence tending to show it. Experience must have demonstrated whether both box and man are necessary in such cases, and evidence of its teaching must be obtainable. The jury should hot be permitted to make a rule of law to suit themselves, or find a fact without evidence. (Cumming v. Brooklyn Gity Railroad Co., 104 N. Y. 669.)

I doubt, therefore, whether we should reverse.

Judgment reversed, new trial granted, costs to abide the event.  