
    Joseph Smith, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 11, 1890.)
    
    Negligence—Railroad brakes.
    Plaintiff, an engineer, was injured by his engine colliding with a car which had, during the night of the accident, moved on to the main track from a side track. To establish defendant’s negligence, plaintiff proved upon the trial that the brake shoe was worn so that it was only half an inch thick, whereas new shoes were two inches thick. Held, that a railroad is not bound to furnish new brake shoes, or those only worn away half an inch or an inch, and that as plaintiff failed to prove that the brake could not be applied, or that when applied it was not as effective as it would have been with thicker brake shoes, he could not recover.
    Appeal from a judgment of the general term, fifth department, affirming an order denying defendant’s motion for a new trial on a case and exceptions.
    
      Edward Harris, for app’lt; James 0. Smith, for resp’t
    
      
       Reversing 9 N. Y. State Rep., 612
    
   Parked, J.

We are of the opinion that the evidence did not warrant the court in submitting to the jury whether plaintiff’s injury resulted from the negligence of the defendant. The plaintiff, while in discharge of his duty as an employee of the defendant, was, without fault on his part, seriously injured by the collision of the locomotive upon which he was riding with an unattended freight car. The accident took place on defendant’s road, about a mile east of East Palmyra, on the 19th day of February, 1884. It appears that the defendant placed three freight cars on a side track at Newark, for loading, at the warehouse of Perkins- & Co. They were coupled together and the brakes on the westerly and middle cars set. Perkins & Co., for their convenience in loading, moved the middle and easterly cars further east, leaving the westerly car standing where it was originally placed.

Some time during the night of the accident this car was moved off the side-track on to the main track, and thence to the point of collision. No one saw the car moved, or could account for it, except on the theory that the car had been driven out upon and along the main track by an easterly wind which, the evidence demonstrated, had blown with great velocity during the night. It is not questioned but that the station agent and other employees of defendant at Newark were competent and skillful. The trial court rightly held that the defendant had given to the station agent at Newark proper instructions as to the method of securing the cars while upon the side-track.

But one ground, therefore, remained to the plaintiff upon which to predicate defendant’s negligence. Was the movement of the car made possible because of defendant’s omission to supply it with a suitable brake ? The plaintiff attempted to show that the brake was defective, and, therefore, not effectual for the purpose of preventing the car from being moved by a strong wind. His proof in that direction consisted of the testimony of several witnesses to the effect that the brake-shoes had worn thin, and were only half an inch thick; whereas new shoes are two inches thick. The examination made by them was after the car had been taken to East Eochester for repairs, and as two of the defendant’s witnesses testified without contradiction after the truck and brake shoes had been changed; a change necessitated by the breaking of the truck in the collision. But assuming that the brake-shoes described by plaintiff’s witnesses were on the car in question at the time of the accident, the fact that they were only half an inch thick does not alone permit the finding in question. Whether they were worn or unworn is unimportant, if they still grasped the wheels effectively. The defendant was not bound to furnish new brake-shoes, or those which had only been worn away a half an inch or an inch, but brake-shoes effectual for the purpose for which they were used. Its duty to an employee is not measured by the thickness of a brake-shoe, but by its adequacy for the use to which it is put.

It was, therefore, incumbent upon the plaintiff to prove facts permitting the inference that this brake could not be applied, or that when applied it was not as effective as it should have been or would have been with thicker brake shoes. This he failed to do. Indeed, the only evidence upon the subject consists of the testimony of the bralceman who applied the brake for the purpose of stopping the cars when they were run upon the side track, and that of two other employees of the defendant. The brakeman testified that it was a good brake and worked all right; and the others, that they saw him apply it.

We are thus forced to the conclusion that the burden resting upon the plaintiff of establishing that his injury resulted from the failure of the defendant to perform some duty owing to him has not been borne.

The judgment should be reversed.

All concur, except Bradley and Haight, JJ. not sitting.  