
    Gehial Garrison, Appellant, v. John J. McCullough and E. B. Thomas, as Receivers of The New York, Lake Erie and Western Railroad Company, Respondents.
    
      Negligence — selection by an employee of a railroad coiporation of a piece of timber for me as a “push stick”—he cannot recover if it breaks and injures him — when the complaint may be dismissed on the opening.
    
    A person who has been for a long time employed by a railroad company as a yardman and who, upon being directed to move a car from a siding and finding no “ push stick” on the engine which supplies the motive'power, uses for the purpose of pushing the car a piece of timber lying in the. vicinity, which being insufficient breaks, causing him injuries, is not entitled to recover damages from the railroad company, as he is entirely competent to judge of the adequacy of the substitute for the “push stick” which he has voluntarily selected, there being no emergency compelling its use at all hazards.
    The question when the complaint may properly be dismissed upon the opening of counsel, considered.
    Appeal by the plaintiff, Gehial Garrison, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 26th day of June, 1897, upon the dismissal of the complaint, upon the plaintiff’s opening, by direction of the court at a trial before the court and a jury.
    
      Frank Lybolt, for the appellant.
    
      Henry Bacon, for the respondents.
   Cullen, J. :

This action is brought hy the plaintiff, an employee of defendants’ railroad, to recover damages for personal injuries received by him from the breaking of a push stick. The complaint charged that the plaintiff’s injury was occasioned by the negligence of the defendants in failing to furnish safe and suitable appliances. The plaintiff’s counsel, in opening the case, stated to the jury the facts which he intended to prove, and on which he claimed to establish the liability of the defendants. This opening was taken down, by the stenographer, and appears in the record. At the conclusion of counsel’s statement the complaint was dismissed, on the ground that the facts which counsel proposed to prove were insufficient to charge the defendants. •

The first- complaint of the appellant is as to the practice adopted at the trial, the dismissal of the complaint on the opening of counsel. As a rule, this practice is not to be approved, but there are cases in which the court is not only empowered to adopt this course, but the course is entirely proper (Oscanyan v. Arms Co., 103 U. S. 261; Ward v. Jewett, 4 Robt. 714.) Undoubtedly, the counsel is not to be held in his opening to strict accountability for faults, either of commission or of omission, or for making unguarded admissions, or failing to state every fact necessary to make out a cause of action. We suppose that in almost every case which is not determinable by á single central fact, the party, if he so requests, should be allowed to offer all his evidence before submitting to a ruling by the court on its sufficiency. But when the facts lie within a,, narrow compass, sharply defined and not giving rise to conflicting inferences, we see no reason why the court, in the absence of protest by counsel, may not dispose of the case upon the assumption that the facts proved will be as stated, and tints avoid loss of time in hearing the evidence.

In this case the plaintiff’s counsel seems not only not to have objected to the practice of the trial court, but to have invited and assented to it. Under the circumstances, we think the action'of the. court was not erroneous.

The case as detailed by the counsel was that the plaintiff for a long time had been in the service of the company as a yardman; that on the occasion of the accident he was directed to move a car from a siding, that the car was attempted to be: moved by what is called stacking. That name is applied to the operation of pushing a car on one track by an engine on an adjoining track, the force from the engine being applied to the car by a pole or stick of timber called a push stick. The plaintiff found there was no push stick on the engine. He, therefore, took a piece of timber lying in the vicinity and used. it for the purpose of pushing the car. It was insufficient, and broke, thereby inflicting the injuries for which he brings this suit.

On this state of facts we think the defendants were not liable. The plaintiff’s injuries were not caused by the failure to supply a push stick, but by the piece of timber that he voluntarily selected as a substitute for the stick. The stick was the simplest possible contrivance, of the adequacy of which the plaintiff was entirely competent to judge. (Marsh v. Chickering, 101 N. Y. 396; Cahill v. Hilton, 106 id. 512.) There was no emergency which compelled the plaintiff to take at all hazards the best substitute for the push stick that he could find, whether sufficient or insufficient. If the use of a stick had been necessary to save life or the destruction of property a different question might be presented ; hut here the only effect of the absence of the stick was either to prevent moving the car or to require its removal in some other manner than by staking out. '

The judgment appealed from should he affirmed, with costs.

Judgment unanimously, affirmed, with costs.  