
    (71 Hun, 209.)
    BYRNES v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Injury to Railroad Employe—Neglect op Company to Make Rules.
    In an action against a railroad company for injuries to an employe resulting from the improper loading of a lumber car so that the brakes would not work, there was no evidence that defendant had promulgated any rule requiring the inspection of cars after loading, or had made provision for making such inspection, except that the agent at the station where the car was loaded said that he understood it to be his duty to inspect each loaded car, and so instructed the men under him. He did not, however, inspect the car in question, and men formerly under him said that he had never given any instructions in that regard. Held, that the question whether defendant had made proper provision for the inspection of cars after loading was for the jury.
    Appeal from circuit court, Orange county.
    Action by Elizabeth Byrnes against the New York, Lake Erie & Western Railroad Company for the death of plaintiff’s husband. From a judgment dismissing the complaint at the close of the testimony, and for $725.30 costs of the action, plaintiff appeals.
    Reversed.
    Argued before DYKMAN and PRATT, JJ.
    John W. Lyon, for appellant.
    Lewis E. Carr, for respondent. .
   PRATT, J.

The law of this case has been settled by the court of appeals in 113 N. Y. 255, 21 N. E. Rep. 50. It was there held, reversing a judgment for the plaintiff, that the evidence showed that the defendant was not guilty of negligence, inasmuch as the defendant had established a system of rules for the inspection of cars after they were loaded, and before they were sent out upon the road, to ascertain if they were properly loaded, so as to be safe for handling by its employes. The cause of the accident, therefore, was the fault of a fellow servant in not complying with the rules in making a proper inspection. - The plaintiff claimed that the car had been loaded with lumber so as to prevent the use of the brake at one end of the car, and thereby the husband of the plaintiff lost his life. The case was sent back for a new trial, with the following instructions contained in the opinion, to wit:

“If there should be made any question on a retrial as to whether the company had, in fact, provided rules for an inspection of the cars, and proper men to inspect them, after they were loaded, and before they were taken away, such question would be proper to submit to the jury, under proper instructions.”

We think the evidence raised precisely that question, and that it should have been submitted to the jury. It is to be observed that there was no evidence whatever on the part of the defendant of the promulgation of any such rule. No printed or written rule of that kind was sworn to, nor even verbal instructions given by any officer to persons in charge of depots on the road. The nearest approach to any such proof was the testimony of Lord, who had charge of the business at the depot where this car was loaded, who said he considered it a part of his duty to do so, and so instructed the men under him; and there was also proof by some men under him that he had so instructed them, but this proof was shaken by the fact that Lord did not inspect this car, and by further proof by former employes that Lord had never given them any such instructions. It is true Lord said it was his custom, but that is far from proving that the defendant had established and maintained a rule for the inspection of loaded cars before they were sent out. This question was purely one of fact, and, considering the manner of Lord’s testifying, and the fact that it was possibly his fault in failing to inspect this car that the accident happened, and the further fact that he was contradicted by two witnesses, made it proper that this question should be submitted to the jury. The defendant makes no point that the deceased was guilty of contributory negligence, or that the car was not proved to be defective when deceased took possession of it. The only point in the case, therefore, is whether the ' defendant had established and maintained a system of inspection to ascertain whether its cars were properly loaded. In this case the question is vital, as this car was not loaded by the employes of the defendant, but by the shipper of lumber. Judgment reversed, and new trial ordered, costs to abide the event.  