
    Joseph De Vau, Pl’ff, v. The Pennsylvania & New York Canal & R. R. Co., Def't.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed November 19, 1889.)
    
    Master and Servant—Negligence.
    Plaintiff who was in the employ of defendant, while at work alongside gravel cars which were being unloaded by means of a heavy plow worked by the engine, was injured by the plow falling from the car upon him. In an action to recover damages for such injury plaintiff recovered a verdict. The general term, by a divided court, overruled defendant’s exceptions, and denied his motion for a new trial.
    Motion for a new trial by defendant upon a case and exceptions ordered to be heard at the general term in the first instance.
    
      Charles A. Pooley, for pl’ff:; Frank Brundage, for def’t.
   The court, Beckwith, Oh. J., and Hatch, J., disagreed, the latter writing the following opinion:

Hatch, J.

(dissenting).—The allegations of the complaint show this to be an action for damages on account of personal injuries alleged to have been sustained by reason of the negligence of the defendant. The gravamen of the charge is contained in the fourth count of the complaint, viz.: “ That in the conduct of its business as such railroad corporation, and in the performance of the work in filling up its roadbed, as above set forth, it was the duty of the defendant to furnish good, suitable and safe machinery, appliances, cars, plows and locomotives, and to employ competent and fit men for the performance of the work required of them; that notwithstanding this, defendant, at the time and place aforesaid, failed and neglected to furnish good, suitable and safe machinery, appliances, cars, plows and locomotives, and failed and neglected to employ competent and fit men for the performance of the work required of them, but, on the contrary, they furnished unsuitable and unsafe machinery, appliances, cars, plows and locomotives, and employed incompetent and unfit men to handle the engine and cars, and plows used as aforesaid, all of which was known to the defendant, but unknown to this plaintiff.”

The complaint further alleges that by reason of the foregoing the said plow was thrown from one of the defendant’s cars and inflicted the injuries for which the recovery is sought. It is thus seen that the issue of negligence presented by the pleading has reference to but two propositions: First, the furnishing of unsuitable and imperfect machinery; and, second, the employment of incompetent and unfit men in and about the performance of the work. The latter ground may be at once dismissed from consideration, as there was no evidence given upon the trial tending to establish negligence in this regard. As to the former, the issue furnished by the complaint was adhered to upon the trial, formed the basis upon which the case was submitted to the jury, and is now insisted upon to uphold the verdict. Upon the facts, I am of opinion that the position cannot be upheld. It appeared substantially, without dispute, that plaintiff, at the time of receiving the injury, was employed in and about a trestle which was being Allied with dirt and gravel, hauled to said trestle upon gravel cars, which were loaded with a steam shovel, at Cheektowaga, a few miles away; when the cars were loaded men were present to remove from the material all large stones, for greater safety in unloading; the cars were then run to the trestle and unloaded with an. iron machine called a plow; this machine was about twenty-four feet long, and rested upon four wheels ten or twelve inches in diameter; a mould board jointed and flanged out upon one side from three to three and one-half feet high, made of boiler iron, was bolted to the beam of the plow; this beam was about twelve inches wide and eight inches thick, and ran its whole length; iron braces run across and it was bridged with boiler iron; the bottom was furnished with an iron shoe bolted on, covered with a steel plate, and the axle of the wheels ran through the centre of the beam; the plow ran along the surface of the cars. Its weight was from two to three tons, and there was piled upon it from four to five tons of railroad iron, the whole weighing from seven to eight tons. Upon one side of the gravel car, extending its whole length, there was bolted a piece of timber about eight inches square, called the guard-rail. The manner of unloading was to uncouple six cars from the train, chain them fast to the track, the plow being upon the rear car, attach the plow by means of a cable hitched at its front end by a hook or clevis to the engine, and thus draw it along over the car, one side running next to the guard-rail and the other, upon which was the mould-board, crowding the dirt off the opposite side of the car. The plow had been thus used about five years and was in working order both before and after the accident. Upon the occurrence of the accident the plow had been started and the dirt removed from one car and was running on to the next, when it suddenly toppled over the guard-rail side of the car and struck the plaintiff, inflicting the injuries complained of. The plaintiff lived near the trestle and had seen defendant filling it for some time. He had worked for defendant two years, but had only seen the plow operated five or six times. Previous to the accident plaintiff testified that he was directed to go forward of the plow and shovel off the dirt from the rails between the cars, and was so engaged when injured. He did not know, nor did it appear by his whole proof, what caused the plow to leave the car, but it was shown that on some days the plow would fall off five or six times, and upon other occasions would not go off at' all. Evidence was given tending to show that when any substance, like a stone or clog, got under the wheels, it would lift the plow up, when it would topple over and either go wholly or partially off. On the occasion in question the evidence of defendant tended quite strongly to show that the cause of its being thrown over was a stone, which had become wedged between the bumpers of the car, _ projecting up from five to seven inches, and that the plow was raised up by it, and thus thrown over. When it fell it was moving as fast as a man would ordinarily walk. In starting the plow the engineer usually blew the whistle, but omitted it upon the occasion of the injury. There was an utter failure of evidence to show that the-plow used was not such a one as was ordinarily used for the result aimed at, or that there was any better or other known device for the purpose. On the contrary, it appeared that the machine had been in use for five years and that no injury had resulted therefrom. It would sometimes be thrown oft the car, if a substance, sufficiently solid, got under it and raised it up, but the same thing is equally true of a steam engine or cars when running upon a track, if they came in contact with a sufficient obstruction to throw them therefrom. So that there is no reason for claiming the machine in use was inherently dangerous. The law is satisfied when the master has furnished a machine which is reasonably safe and suitable for the purposes required. Hickey v. Taaffe, 105 N. Y., 25 ; 6 N. Y. State Rep., 426.

He is not bound to furnish the best or most approved machine, or the safest, but is only bound to exercise reasonable care and prudence in the selection of one that is reasonably safe. Probst v. Delamater, 100 N. Y., 266.

Here there is nothing to show but that the machine used was of the most approved character. When the master has furnished a machine of the character required, the servant, in entering upon the employment, assumes the risk incident to its use. Sweeney v. Berlin & J. E. Co., 101 N. Y., 520.

Independent of these considerations, however, there is nothing shown tending to establish that the master has in any sense violated its duty with respect to the machine furnished, and my mind is irresistibly forced to the conclusion, upon the evidence, that this injury was the result of an accident which reasonable foresight and care could not guard against

This finds support in the fact that the plaintiff and his witnesses are unable to assign a cause for the plow leaving the car, while immediately following it the machine remains in good condition and a stone is found in the direct path of the plow bearing marks of contact with it, and at the point where the plow is thrown over; this coupled with the uncontradicted fact that it had only toppled over before when raised by a foreign substance, leads to the conclusion that it was so caused in the present case. Under such circumstances a master has never been held responsible. Hussey y. Coger, 112 N. Y., 614-621; 21 N. Y. State Rep., 848.

Liability can not be predicated upon the failure to sound the’ whistle when the plow was started. If we assume it to be negligence, it was clearly that of a co-employee and within the principle of the last case cited would not render defendant liable. Upon the issue furnished by the pleadings and the theory of the trial no question of providing rules for the conduct of employees in the performance of the work is in the case, and it may not be considered. I am therefore of opinion that the exceptions should be sustained, and a new trial ordered, with costs to abide the event.

Exceptions overruled, and judgment ordered for plaintiff.

Titus, J., not sitting.  