
    CLARK v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Division, Fourth Department.
    November 14, 1906.)
    Master and Servant—Assumed Risks—Operation op Railroads.
    In shifting cars jolts from failures of attempts to uncouple cars constantly occur, against which brakemen are required, to guard themselves from injury, and are risks which they assume in the course of their employment, and no recovery can be had where an injury results, although the jolt causing the injury was attributable to a defective coupler.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 554.]
    Kruse, J., dissenting.
    Appeal from Trial Term, Onondaga County.
    Action by Annie M. Clark, as administratrix of George O. Clark, deceased, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.
    Argued before McLENNAN, P. J., and SPRING, WILLIAMS, NASH, and KRUSE, JJ.
    A. H. Cowie, for appellant.
    A. Lee Olmsted, for respondent.
   NASH, J.

The action is to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

The plaintiff’s intestate was a freight brakeman in the employ of the defendant at the time of his death. His train arrived at Seneca Falls about 4 p. m., September 35, 1905, where there were three tracks, the main track on the south, a passing siding next north, and next a storage siding, on which there was a string of five or six cars, the most westerly of which was a hay car to be taken on. For that purpose the engine and one car, referred to as the “Syracuse” car, was detached from the easterly end of the train and run over onto the storage siding. A coupling was made to the easterly car of the string, which was a Michigan Central car, and they were pulled down to the east until the hay car cleared the point of the switch leading from the storage to the passing siding, and was backed in and coupled to the train. Then the rest of the cars of the string were pulled out for the purpose of placing them back on the storage siding. There were automatic couplers on the Syracuse car and the Michigan Central car. As the engine backed the string westerly on the storage siding, Hoy, a brakeman, walked alongside, for the purpose of cutting the coupling between the Syracuse and Michigan Central cars. The speed was about four or five miles an hour. There was a slight curve in the track, so that the engineer could not see Hoy when close to the train. When it was time to make the cut, Hoy stepped out from the train and signaled the engineer to slow up or stop, which he did,' reducing the speed to about two miles an hour or nearly to a stop. This had the effect of letting out the slack and loosening the coupler between the cars. Hoy then stepped in and tried by lifting the lever to pull the pin which held together the coupling between the Syracuse car and the Michigan Central car. The lever turned without lifting the pin, and ■he thus failed to uncouple the cars, which were brought up with a jerk by the stoppage of the engine. Then Hoy signaled the engineer to back easy, and when the slack came he pulled the pin by hand. At the time that Hoy first failed to pull the pin the plaintiff’s intestate was walking westerly along the top of the rear car, within two or three feet of the west end of it, and when the jolt came, because of the stoppage of the engine, he pitched forward, head foremost, over the end of the car to the track, and was run over, causing the injuries which resulted in his death. The failure of the operating lever to lift the pin which held together the coupling on this occasion is attributed to a broken clevis between the operating lever and the pin of the automatic coupler, which the defendant had neglected to repair. This is the sole ground of alleged negligence on the part of the defendant.

There are various causes for failures of attempts to uncouple cars not attributable to defective couplers or machinery. The pins stick, caused by rust or dirt in the coupler, the links of the coupler become battered, or the pins bind on a curve, or the slack is not sufficiently taken up, and in other ways there are failures to uncouple, resulting in the letting out of the slack bring the cars up with a jerk, as on this occasion. In shifting cars jolts from the causes mentioned constantly occur, against which the bralcemen are required to guard themselves from injury. They are the usual and ordinary results of moving cars in railroad yards, risks which they take in the course of their employment.

We think it was error to submit the case to the jury, and for that reason the judgment must be reversed, and a new trial granted upon questions of law only. All concur, except KRUSE, J., who dissents.  