
    Bailey v. Rome, W. & O R. Co.
    
      (Supreme Const, General Term, Fourth Department.
    
    July, 1888.)
    Master and Servant—Negligence—Defective Appliances—Evidence.
    Where a brakeman on a freight train was injured in attempting to set a brake, which then proved defective, evidence that after the accident the pin which held the brake-rod in place was missing, the train at the time having proceeded 30 miles on its journey, is insufficient for submitting to the jury the question of negligence in an action against the railroad company for the injuries.
    Appeal from circuit court, Oneida county.
    Action by William D. Bailey against the Rome, Watertown & Ogdensburg Railroad Company, for personal injuries. Defendant appeals from a judgment on a verdict of $10,113.62 for plaintiff, and from an order denying a motion for new trial on the minutes.
    Argued before Hardin, R. J., and Follett and Martin, JJ.
    
      
      Beardsley <& Beardsley, for appellant. Scripture & Backus, for respondent.
   Martin, J.

This action was for negligence. The plaintiff was an employe 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 employes 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 care, 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 “No. 60.” The train left Norwood, the northern terminus of the defendant’s road, about 2 p. m., and arrived atDe 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, be 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, or 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 30 or 40 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 negligent. 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 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 the 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, 3 N. E. Rep. 184. 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 of 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 its nature necessarily házardous, 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. Railroad Co., 39 Hun, 432, and cases cited in opinion. An employe 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. De Graff v. Railroad Co., 76 N. Y. 125. In the language of Allen, J., in Wright v. Railroad 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. Railroad Co., 55 N. Y. 579: Baulec v. Railroad Co., 59 N. Y. 356; Edwards v. Railroad Co., 98 N. Y. 245; Kelly v. Railway Co., 109 N. Y. 44, 15 N. E. Rep. 879. 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, 13 N. E. Rep. 339.

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. Railroad Co., supra; Hayes v. Railroad Co., 97 N. Y. 259. 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 and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.  