
    William D. Bailey, Resp’t, v. The Rome, Watertown and Ogdensburg Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1888.)
    
    1. Master and servant—Duty of master to furnish safe and proper TOOLS TO SERVANT.
    It is the duty of a master to furnish safe,. suitable and proper tools and machinery and implements for the use of his servant in the performance of his work and to keep them in repair.
    2. Same—Extent of duty—Liability of master for injuries received through defects in machinery.
    This duty is not absolute, and is satisfied by the exercise of reasonable care and prudence on the part of the master. Having exercised such care in furnishing tools and machinery to the servant, the master is not liable for an injury resulting from their breaking or failure, unless shown to be guilty in regard thereto.
    3. Same—Risks of employment are assumed by servant.
    Where a servant enters upon an employment necessarily hazardous he assumes the usual risks and perils of the service, and those that are known to him or which are apparent to ordinary observation.
    4. Same—Action by servant for injuries received through defective MACHINERY—NEGLIGENCE OF MASTER ESSENTIAL TO RECOVERY — When error to submit action to jury.
    Negligence on the part of the master is essential to be established in order to the recovery of the servant for injuries received through defects in tools or machinery furnished for his use, and where in an action to recover for such injuries the evidence is equally consistent with the absence as witli the presence of negligence on the part of the master, it is error to submit the action to the jury.
    This was an appeal from a judgment entered in Oneida county, December 12, 1887, for $10,113.62 damages and costs, and from an order denying the defendant’s motion for a new triai, made on the minutes of the trial judge. The case contains all the evidence.
    
      Beardsley & Beardsley, for app’lt: Scripture & Backus for resp’t.
   Martin, J.

This action was for negligence. The plaintiff was an employee of the defendant. The plaintiff, in his complaint, alleged that he was, on the 3d day of August, 1886, a brakeman upon one of the defendant’s freight trains; that it was the defendant’s duty to provide for the use of its employees safe cars, car brakes, machinery, etc., and to keep the same in good repair, but that it knowingly provided, used and permitted'to be used, unfit, unsafe, defective and dangerous freight cars, car brakes, etc., and knowingly allowed them to be used; and that while the plaintiff was performing his duties in a dangerous and unsafe place, the defendant directed, caused, or permitted him to use and operate such dangerous, unsafe and unfit cars, car brakes, etc.; and that he was, by reason of such negligence and want of cafe, and without any fault of his •own, injured in the manner therein stated. All the material allegations of this complaint were put in issue by the defendant’s answer.

The accident, which resulted in the plaintiff’s injury, occurred at De Kalb Junction, a station on the defendant’s railroad, on the 3d day of August, 1886. The plaintiff was a brakeman on a freight train known as number sixty. The train left Norwood, the northern terminus of the defendant’s road, about 2 p. m. , and arrived at De Kalb between 3 and 4 p. M. It was made up of box and flat freight cars. While the train was doing its work at the latter station, the plaintiff attempted to set the brake upon one of the flat cars, when, as he claims, he set the brake as firmly as he could with the muscles of his wrist, and then'swayed upon it, when the brake rod and handle came up in his hands easily and threw him from the train, where he was injured by the moving cars. After the plaintiff’s injury, it was found that the pin in the bottom of the brake rod, by which the rod is held in its place, was gone. There was no evidence which tended to show when it was broken, removed or lost, nor that the defendant or any of its employes knew of its absence before the accident, neither did the plaintiff give any evidence tending to show any omission on the part of the defendant, to properly inspect the car in question. The only theory upon which the plaintiff claimed to recover was, that having proved that after the accident the pin was out of the rod, the jury had the right to infer from that fact alone, that the pin was out when the train left Norwood, which was some thirty or forty miles distant, and then upon the inference thus drawn, to base the further inference that the car was not properly inspected before it left that station, and upon this second inference, to find that the defendant-was fiegligent. We do not think this theory can be sustained.

We think the plaintiff’s evidence was insufficient to justify the submission to the jury of the question of the defendant’s negligence, and that the court erred in refusing to grant the defendant’s motion for a nonsuit. There was no evidence in the case to sustain the plaintiff’s allegation that, the defendant had knowledge of the defect complained of'.. Indeed, the evidence totally fails to show that it existed before the accident. Under the evidence we can discover no-reason why this pin may not have been broken at the time of the accident, or lost out or removed while the train was-at De Kalb, or on its way from Norwood to that station, as well as before that time. The proof was, at least, equally consistent with the theory that the pin came out when the accident occurred, or after the train left Norwood, as with the theory that it'was out when it left the latter place. If it was lost or broken at De Kalb, or during the trip that day, then there can be no pretense that there is any proof that the defendant was negligent.

The duty of a master to furnish safe, suitable and proper-tools, machinery and implements for tire use of his servant, in the performance of his work, and to keep them in proper-repair, is not an absolute one. It is satisfied by the exercise of reasonable care and prudence on the part of the master. Probst v. Delamater, 100 N. Y., 266. Therefore, to entitle the plaintiff to recover in this action, he was bound to prove that the defendant had omitted to exercise reasonable care-in furnishing the plaintiff with safe and proper tools and appliances to be used by him in the performance of his work, or that it was negligent in not keeping them in a proper state óf repair. If the defendant was negligent, the; burden of establishing that fact was upon the plaintiff.. Negligence must be proved, it is not to be presumed.

Where a servant enters upon an employment from it® nature necessarily hazardous, he assumes the usual risks- and perils of the service, and also those that are known to-him, or which are apparent to ordinary observation. Williams v. D. L. and W. R. R. Co. (39 Hun, 432), and cases cited in opinion. An employee in the service of a railroad corporation assumes the risks and dangers incident to the-business in which he is engaged; and while the company is bound to exercise reasonable care to furnish suitable and-safe machinery and appliances for his use, having done so,, it is not liable for an injury resulting from their breaking or failure, unless it is shown that the corporation has been-guilty of negligence in regard thereto. DeGraff v. N. Y. C. and H. R. R. R. Co., 76 N. Y., 125.

In the language of Allen, J., in Wright v. N. Y. C. R. R. Co. (25 N. Y., 566), “If the injury arises from a defect or insufficiency in the machinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same through his own negligence and want of proper care. The same doctrine is held in Chapman v. Erie R. R. Co. (55 N. Y., 79); Baulec v. N. Y. and H. R. R. Co. (59 N. Y., 356); Edwards v. N. Y. and H. R. R. Co. (98 N. Y., 245); Kelly v. N. Y. and Sea Beach R. R. Co. (109 N. Y., 44; 14 N. Y. State Rep., 36).

A master’s liability to his servant for injuries received in the course of his employment is based upon the personal negligence of the employer, and the evidence must establish personal fault on his part, or what is equivalent thereto, to justify a verdict, and he is entitled to the benefit of the presumption that he has performed his duty until the contrary appears. Cahill v. Hilton, 106 N. Y., 512, 517; 11 N. Y. State Rep., 26.

The submission of an action for negligence to a jury is not authorized where a plaintiff’s evidence is equally consistent with the absence as with the existence of negligence, as in such a case the evidence fails to establish negligence. Baulec v. N. Y. and H. R. R. Co., supra; Hayes v. Forty-second Street, etc., R. R. Co., 97 N. Y., 259, 262.

The principles of the authorities cited, we think, fully sustain our conclusion that the evidence in this case was insufficient to justify the submission to the jury of the -question of the defendant’s negligence; and that the court erred in refusing to grant the defendant’s motion for a nonsuit. For this error the judgment aud order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Judgment and order reversed on the exceptions, and a new trial gi’anted, with costs to abide the event.

Hardin, P. J., and Follett, J., concur.  