
    Grant Myers, Respondent, v. Erie Railroad Company, Appellant.
    
      Negligence — a/pplication of a rule requiring brakemen to examine brakes — an injury to a brakeman caused by the breaking' of a defective brake staff presents a question' for the jury — an allegation of injury to head, side and ribs justifies proof of a disorder of the heart. ‘
    The obligation of a brakeman on a railroad to comply with a rule of the company requiring brakemen to assist the conductor “in inspecting the cars” and to “ examine and know for themselves that the * * * brakes, brake shafts and attachments * * * which they are to use, are in safe and proper condition,” is to be measured by his opportunity to examine and the character of the existing defect.
    In an action brought by a brakeman against the company to recover damages for personal injuries, evidence that while the plaintiff was attempting to set a brake, which had worked properly some four hours previously (during which period of time he had no specific duty to perform), the brake staff, which was four feet high, broke some three or four inches above the dog at a point where there was a crack extending about half-way through the staff, in consequence of which the bfakeman was thrown from the car and injured, is sufficient to warrant the submission to the jury of the question whether the plaintiff was guilty of contributory negligence in failing to observe the defect.
    Evidence that the defective part of the brake staff was rusty, indicating an old break, is sufficient to warrant the jury in finding that the defect in the staff, which was produced on the trial, had existed at a time when the car was being repaired at the defendant’s shop, twenty-two days before the accident.
    An averment in the complaint that the plaintiff sustained injuries to the -head, side and ribs, to such an extent as rendered him unfit to' perform the duties which he had previously performed, which condition would be permanent, is sufficient' to warrant the admission of evidence tending to show the existence of a permanent disorder of the plaintiff’s heart.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Orange on the 20th day of April, 1899, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry Bacon, for the appellant.
    
      William F. O'Neill [Thomas Watts with him on the brief], for the respondent.
   Hatch, J.:

The action is to recover damages for. injuries alleged to have been sustained by reason of the negligence of the defendant. There is no dispute in the testimony as to how the accident occurred. Briefly stated, it appears that the plaintiff, on the 1st day of August, 189Y, was employed upon a train of the- defendant, which was being-loaded with slag, at a point on the road called crusher switch, and hauling the material when loaded to its destination. Upon the switch at the time when the train was run in were three or four cars, and one, a gondola car, constituted the extreme rear end of the train. The plaintiff,- in the performance .of his duties as a brakeman, set the brake upon this car, and at that time the appliance worked all right. The train remained upon the switch about four hours, while the cars were being’ loaded, during which time the plaintiff had no specific duty to perform. The brake staff upon the gondola car was defective, such defect consisting of a crack extending about half way through the staff and three or four inches above the dbg which rested upon the platform of the car. How wide this break was or whether it was visible from a casual inspection, does not appear. After the train had been loaded and in the course of its operation, the plaintiff again had occasion to set the brake, and in twisting it the staff gave way at the defective place and the plaintiff was precipitated to the ground underneath the car. The train was running at a slow rate of speed, the fall was observed, and the progress of the train was stopped as quickly as possible. The plaintiff lay between the rails and the wheels of the cars did not pass over any part of his body, although he received injuries more or less severe, which were the subject of investigation upon the trial.

The defendant charged that the plaintiff was guilty of contributory negligence in failing to make an inspection of the brake staff and discovering its defective condition. In order to lay the foundation for the charge of contributory negligence, the defendant established that the plaintiff was familiar with the following rule, and had it in his possession :

It is the duty of brakemen to make couplings; attend to the brakes; be provided with and properly display train signals; and assist the conductor in loading and unloading freight; in inspecting the cars, and in all things necessary for the prompt and safe movement of the train.
“ They must examine and know for themselves that the coupling apparatus, drawheads,- drawbars, brakes, brake shafts and attachments, ladders, running boards, steps, hand holds, and other parts and 'mechanical appliances which they are to use, are in safe and proper condition; if not, report them to the conductor, and have them put in order before using.”

Similar rules have been the subject of judicial examination several times, and the courts have announced that they are to be reasonably construed in view of the circumstances of the case. It is quite evident that the measure of obligation which is imposed upon an employee of this character by virtue of this rule is much less strict than is imposed upon employees of the defendant charged with»the specific duty of inspecting cars for the express purpose of discovering their condition, and the reason for such' distinction is obvious. A brakeman has other duties and obligations resting upon him than that of inspection, and in many cases such duties almost wholly exclude any opportunity to examine the various appliances " which he is required to use. Under such circumstances the rule, interpreted in the strict sense, would impose an obligation which the employee would have little or no opportunity to" discharge. It must, therefore, be subject to a reasonable interpretation, measured in degree by the opportunity to examine and the character of the existing defect. Such rule was' applied in O'Malley v. N. Y., L. E. & W. R. R. Co. (67 Hun, 130; affd., 142 N. Y. 665). The facts of that case, are somewhat different from those in the present case. There the' plaintiff had opportunity to examine the car and. the brake, for a period of fifteen or twenty minutes, while the car stood upon the siding, and when he had nothing else to do. In addition to this, the character of the defect "was more'readily apparent than was the defect in the present case,' as it would seem to have been observable from a casual inspection. In the present case there was sufficient time in which the plaintiff might have made the most detailed examination of this brake staff had he devoted himself to that alone ; but it is evident that as the brake staff was about four feet in height and-the defect but three or four inches above the dog, quite a careful observation would have been necessary in order to detect the break. In.-addition to this the plaintiff had- already once-used the. brake, and to all outward appearances it performed its office as was expected, and there was, therefore, nothing in the condition or surroundings which would prompt a careful scrutiny, of this particular appliance. Having used it and finding that it worked all right, would ordinarily prompt him ,to proceed with the inspection of the other parts of the train which he was to use, rather than this particular brake. In view of all the circumstances, therefore, we-are of opinion that the question of whether the plaintiff ’.was guilty of contributory negligence in failing to observe the defect, wás inore properly within the province of the jury to answer than that of the court;' and that in principle the case is not different from the one we have heretofore cited, and its rule should be applied. The defendant’s negligence has been made to depend upon the failure to furnish a safe appliance, and in this respect the case rests upon practically conceded facts. It was established by the testimony that this car was inspected by the defendant’s inspector, found defective in its brake staff (whether this or another is not disclosed), and that it was sent to the shop for repairs on the tenth day of July, prior to the injury. As the accident happened on the first of August, the ear could not have been out of the shop, after such repair, more than twenty-two days. If the defect existed at the time the car was inspected and repaired, then the failure to observe it and restore it to a proper state constituted negligence for which the defendant was responsible. It is claimed, however, that, there is no evidence showing when this brake staff became in the condition it Avas on the day of the accident. The jn-oof on the part of the plaintiff in this respect is that the defective part of the staff was rusty, indicating an old break, which Avas described, by the Avitnesses in connection with the exhibition of the brake itself. Ro other evidence discloses the period of time expressed by the Avord “ old,” but. as its condition Avas described and the brake staff itself Ayas produced, Ave think it Avas Avithin the province of the jury to interpret such testimony and infer therefrom that the defect had existed for a longer period than twenty-two days. If Ave. are correct in such construction, it necessarily folloAvs that the jury were authorized to find that the defendant had not discharged its obligation to the plaintiff Avlien it failed to discover and repair this defect at the time Avdien the inspection and repairs were made upon this car. The main questions, therefore, of negligence and contributary negligence, were for the jury. i

It is claimed, however, that error was committed in admitting evidence of a permanent disorder of the plaintiff’s heart. There is no doubt but that the testimony of the physicians Avas sufficient to connect the heart trouble Avith the injuries received, so that no difficulty is experienced in this regard. So far as the averments of the complaint are concerned, we think they were broad enough to admit this testimony' as an element for consideration. The averment of the particular in j ury is to the head, side and ribs of the plaintiff to such an extent as renders him unfit to perform the duties he had previously performed, which condition will be permanent. This, we think, is a sufficient averment to permit of the proof, and if the defendant needed further information it should have made use_ of the remedies provided to accomplish that end.There are no other questions in the case which require consideration. The judgment should, therefore, be affirmed.

Judgment and order unanimously affirmed, with costs.  