
    SMITH v. BUFFALO, R. & P. R. CO.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    1. Master and Servant—Dangerous Appliances—Railroad Companies.
    A railroad company is negligent in substituting for a switch engine in one of its yards, during the nighttime, an ordinary freight engine, having none of the usual bumpers or appliances on switch engines designed to protect the switchman if he fails to make a coupling.
    2. Same—Contributory Negligence.
    Though the switchman may have known that the freight engine was not provided with bumpers or deadwoods, yet, being inexperienced, and never having previously attempted a coupling with the engine in question, he was not, as matter of law, guilty of contributory negligence in attempting to make the coupling in obedience to orders from his superior, since he had a right to assume that the company would not require him to use an appliance without some safeguard for his protection.
    Appeal from circuit court.
    Action by Daniel P. Smith against the Buffalo, Rochester & Pittsburgh Railroad Company for personal injuries sustained while in defendant’s employ. From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial made on the minutes, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    Henry G. Danforth, for appellant.
    E. F. Babcock, for respondent.
   LEWIS, J.

This action was commenced for the recovery of damages for personal injuries sustained by the plaintiff while employed by the defendant as a switchman in defendant’s yards at Bradford, Pa. The plaintiff had been at work for the defendant, in the capacity of switchman, for nine days prior to the accident. He had prior thereto been employed by railroads in various capacities, but never before as a switchman. The defendant had in its yards two switching engines for doing that work. They were provided with appliances for the protection of switchmen when engaged in coupling cars. In front of these switch engines, and running across the front thereof, was a footboard about 12 inches wide, upon which the switchman could stand when making couplings. They were also provided "with a projection in front called, a “mouth organ” or “drawhead.” The front end was large, and had three openings to receive a link. The drawhead acted, in a measure, to prevent the engine and the car, when being coupled, coming near enough to each other to injure the switchman. On the night of the accident the plaintiff went on duty at 6:30 P. M., and commenced switching with a regular switch engine; but early in the night, without his knowledge, the switch engine was sent to the shop for repairs, and a regular road freight engine was substituted for use in the yard. It was a heavy, eight driving wheel engine, and was not provided with any appliances for the protection of the switchman while making couplings. It had the usual pilot or cowcatcher, which extended out about five feet in front, and coming to a point. The coupling appliance consisted of an iron drawhead, commonly known as a “bull nose,” which extended from the face of the pilot beam a distance of 2|- feet. The face of the bull nose was 12 inches long, and 10 1-8 inches broad. The opening in the head of the bull nose was 5 inches square. This was to receive a link. There was a step or footrest on the pilot, 15 inches long, projecting 5 inches from the outside of the slats composing the püot. The end of this step was 13 inches from the end of the püot. The plaintiff was directed by the yard conductor or head switchman to couple the engine to a passenger car. It was dark at the time. The passenger car was provided with what is known as a “Miller coupling,” but it had neither bumpers, safety blocks, nor deadwoods. These Miller drawheads extend out from the platform of the car about a foot, with a face width of about 8 inches, with an appliance to receive a link. Attached to it is a strong spring, which gives a play to' the drawhead, to the left, of about 3| inches. Hear the front end of it is a clutch or jaw, and when two of these drawheads come together, owing to this play, they pass each other until the clutches are opposite, and then close, by springs, automaticaüy. In attempting to effect the coupling on the occasion of the accident, the plaintiff stepped with his left foot upon the ledge or step described, and balancing his body upon that foot,—the other foot having nothing to rest upon, —with his lantern upon his arm, he took the links attached to the drawhead of the engine in his left hand, and, with a pin in his right hand, attempted to insert the link into the MUler coupling, ■and secure it thereto by dropping the iron pin into the link. He failed to insert the link, and the two drawheads came together, passed each other, and the drawhead of the passenger car caught plaintiff’s left leg between it and some part of the pilot, and crushed it, injuring it so that it necessitated amputation. The accident occurred before daylight in the morning.

■ The plaintiff attempted to make the coupling in the ordinary manner, but, obviously, with the appliances furnished him, it was a hazardous and dangerous thing to do. There was an entire absence •of any safeguards to protect the plaintiff’s person in case of a failure to effect the coupling. Standing, as he was required to do, upon one foot, with the lantern upon his arm, with both hands •engaged, it is not surprising that he failed to secure the link in the passenger car. It was, we think, inexcusable negligence on the part of the defendant to use such an unguarded and unprotected engine for such a purpose, especially in the nighttime. In view of the terrible consequence likely to result to the plaintiff 'if the slightest mishap should occur, it was the defendant’s duty to provide him with every reasonable and well-known safeguard to prevent injury to his person. This it failed to do, and the jury very properly found the defendant was guilty of negligence causing the injury to the plaintiff. The evidence tended to show that there was in common use, and had been for many years, upon engines and cars, bumpers and other appliances for the protection of men when engaged in coupling cars.

It was the first time the plaintiff had attempted to effect a ■coupling with this engine. He was directed by his foreman to do the work. He had no time or opportunity to investigate the engine and car, to ascertain if there were appliances for his protection. The exigencies of the business required prompt action on his part, and it became a question for the jury to determine from the evidence whether the plaintiff was guilty of negligence •contributing to his injuries. While the plaintiff may have known, in a general way, that the engine was not' provided with dead-woods, he had a right to assume that the defendant would not require him to use an appliance without some safeguard for his protection.

The defendant has no cause to complain of the - charge to the jury. The law of the case, taking the entire charge together, was carefully and correctly stated. We find no reason for disturbing the judgment. The judgment and order appealed from should be affirmed. All concur.  