
    Augustus Knox, App'lt, v. The New York, Lake Erie & Western Railroad Co., Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    1. Negligence—Will not be presumed.
    Presumptions of negligence cannot lie indulged in to impose liability; it must be established by competent evidence produced by the plaintiff.
    2. Same—Railroads.
    A freight train contained two cars of lumber, the long timbers running from one to the other, resting on bolsters to allow for play on rounding curves. The cars had stakes on the sides with stay boards over all the lumber. It rode safely for over one hundred miles, and was inspected by the conductor at Port Jervis and found all right, but afterwards, on rounding a curve, one of the bolsters worked loose and crashed into the caboose of a train which-was passing, in which plaintiff, a brakeman, was riding, and injured him. There was no proof of any defect in the cars or of a failure to provide a proper system of inspection. Held, that the injury to plaintiff was the result of an accident which could not have been anticipated, and that a dismissal of the complaint was proper.
    Appeal from judgment dismissing the complaint.
    
      O. P. Howell, for app’lt; Lewis E. Carr, for resp’t.
   Dykman, J.

This is an appeal from a judgment dismissing the complaint of the plaintiff at the close of the testimony on his part upon the trial.

The action is for the recovery of damages for personal injuries. The plaintiff was in the service of the defendant as a brakeman and oilman. On the day of the accident he was upon a freight train going west in his regular service. He was in the caboose at the rear of the train, and between Otisville and Howells his train met a freight train eastward bound, and on the left of his train. These trains met on a curve to the right going west and to the left going east.

The cars in the train going east were loaded, and among them were two cars loaded with lumber and timber of different lengths.

The short lumber was loaded on each car, and on the top were long timbers longer than either car, and they extended from one car to the other, resting partly upon both. Upon the top of the short timber on each car a piece of timber called a bolster was laid crosswise of the car. The office of the bolsters was to enable the long timbers to yield to the motion of the two cars without disarranging the timber below as they rounded the curves of the railroad. Upon each side of the two cars there were three or four stakes set in pockets, extending above the top of the lumber, and across each car above the lumber there were two or more stay boards nailed to the stakes on each side.

These lumber cars were loaded at Lanesboro, and came west over the Delaware division of the railroad over a hundred miles. They were examined at Port Jervis by the conductor, and found to be in good order, and the lumber and timber continued in its place until the trains met, when about ten cars length from the caboose in which the plaintiff was riding the bolster on the forward car of the two worked out, struck the caboose, broke three of the stakes on the forward, car, and broke the stay boards from their fastenings and was forced into the caboose, struck the plaintiff, and inflicted the injuries for which he sues.

It is to be observed at the outset that there is no proof of defects, imperfection or insufficiency in these lumber cars or any of their appendages, or of a failure on the part of the company to provide a proper system and competent men for the inspec-. tion of the cars after they were loaded, and there is no point made by the appellant on this appeal respecting the absence of such system or such men.

It does appear, however, that these lumber cars were inspected at Port Jervis.

There was proof that the cars were properly loaded and in the usual manner, although one witness said he thought there were too many cross pieces, and that they were too long for the cars and liable to work out.

Such an opinion was insufficient to sustain a verdict for the plaintiff.

The case, therefore, stands thus: The cars were safe and free from defects and imperfections. There was no proof of failure to provide a suitable system of inspection and competent agents to make the same. Presumptions of negligence cannot be indulged to impose liability. It must be established by competent evidence, produced by the plaintiff, in all actions of this character.

The failure to detect the error in loading the cars, if there was any, and the failure to rectify the mistake, was the negligence of a fellow servant, and not the fault of the defendant.

Our examination has failed to detect any negligence on the part of anyone. The cars were in good order, the timber was properly loaded, and rode more than one hundred miles in safety. It was inspected at Port Jervis and found to be secure and unmoved, and remained so until within a few rods of the accident, when one of the bolsters worked loose while the train was rounding a curve.

The device of a bolster to afford play room for the long timbers as the cars went round the curves on the road was evidently a practical idea, and all the witnesses say it was usual and proper.

The injury to the plaintiff was, therefore, the result of an accident which could not have been anticipated, and cannot be charged to negligence.

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  