
    Ellen S. Graham, Adm’rx, Resp’t, v. George D. Chapman, Rec’r of the Lackawanna & Pittsburgh R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    1. Master and servant—Contributory negligence.
    Plain! ifE’s intestate,. a fireman on defendant’s road, was killed by the derailment of the train caused by the tipping or spreading of a rail, the ties being rotten so that the rails would not hold. H- Id, that general knowledge on his part that the condition of the tracks was rough would not bring home to him knowledge of this particular defect, so as to charge him with accepting the risk of danger therefrom.
    2. Same—Receiver of railroad.
    A receiver of a railroad who operates and controls it in the usual manner is liable for injuries to his employees in the same manner and to the same extent as the corporation would be held had he not been appointed, and cannot absolve himself from liability for negligence in not keeping the tracks in good condition by showing lack of funds.
    Appeal from, a judgment entered in Allegany county, on the "verdict of a jury at the circuit, July 20, 1888, and from an order denying the defendant’s motion for a new trial made upon a case and exceptions.
    
      Frank S. Smith, for app’lt; Hamilton Ward, for resp’t
   Macomber, J.

This action was brought for the negligent killing of the plaintiff’s intestate, while in the employ of the defendant as locomotive fireman, by the derailment of the engine on the 24th day of February, 1886.

Evidence was given that the derailment was caused by the tipping over of the rail, the ties being rotten, so that the nails would not hold the rails in their place, whereby, by the spreading or tipping of the rails, the train was thrown down a steep embankment where the plaintiff’s intestate was crushed.

The fact that such was the condition of the tracks, where the injuries were inflicted, is not controverted by the defendant. Liability, however, is disputed mainly upon the ground that the deceased knew of the condition of the tracks and consequently took all the hazards of the employment. There is no evidence to show that the deceased knew of the rotten condition of the ties at the point where the locomotive was overturned, though he doubtless did know, in a general way, as any one riding upon that railway could not well avoid knowing, that the general condition of the tracks throughout the line was rough. But this general knowledge did not bring home to the fireman this particular defect in the railway, so as to charge him with any negligence contributing to the injury by reason of his own fool-hardiness. Mehan, adm’r v. The S., B. & N. Y. R. R. Co., 73 N. Y., 585; Hawley v. The Northern Cent. R. R. Co., 82 id., 370; Durkin v. Sharp, redr, 88 id., 225; Devlin v. W. St. Louis & P. R. Co., 87 Mo., 545.

The learned counsel for the appellant says in his brief, that, “it is a fair inference from the testimony in the case, and in fact an irresistible conclusion, that the condition of the track was due to the employment of an insufficient number of trackmen to keep the track in good repair.” And it is argued therefrom that the lack of sufficient trackmen was due to the want of<4unds in the defendant’s hands, as the road did not pay running expenses, and that the defendant, consequently, is not liable. We know of no principle under which a receiver can thus absolve himself from liability. The defendant had been such receiver for upwards of two years at the time of the accident, and he admits in his answer that ever since his appointment he, as such receiver, had operated and controlled this railroad in the usual manner of carrying on and operating railroads, and during that time had exercised the duties, powers and rights of the company in its management, control and operation. Under these circumstances he must be held liable for injuries to his employes in the same manner and to the same extent as the corporation, itself would be held had it not gone into the hands of a receiver.

It was his duty to cause the railway tracks to be inspected carefully by competent inspectors, and to know its condition before imperiling the lives of employes upon it. Durkin v. Sharp, supra; Fuller v. Jewett, rec'r, 80 N. Y. 46.

The judgment appealed from should be affirmed.

Dwight, P. J. and Corlett, J., concur.  