
    George Filbert, v. The President, etc., of the Delaware and Hudson Canal Company.
    
      (New York Superior Court, General Term,
    
    
      Filed October 25, 1888.)
    
    Negligence—Railroad—Liability of employer.
    On the trial of an action to recover damages for injuries resulting from the alleged negligence of the defendant, it appeared that the plaintiff was-employed to uncouple cars while they were slowly moving upon the rails. That at the time of the occurrence in question, he was proceeding to uncouple in a manner in which he had been previously instructed, that he stepped with his left foot upon the track, that he raised his left arm to uncouple the cars, that his left foot fell into a hole between the bumpers of the cars, and as then caught, he moved some distance beyond the hole while the cars were moving The hole was a part of the top of a regular made pit, in which was machinery. In the usual condition of affairs, a set of planks completely covering the hole, so that it was entirely safe for workmen walking over it That these planks were taken up occasionally for the purpose of repairing machinery, and on the day before the acci- • dent had been removed and not properly repl ced That the plaintiff knew of the uncovering of the pit. Held, that the jury were not bond to find that he knew of the manner of the recovering, or that there was any imperfection in it. That it was the duty of the master to have a covering that would protect the servant in working above the pit That it was for the jury to say whether the defendants had used due diligence in respect of their duty to provide a safe covering.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict oí the jury rendered at trial term, and from an order denying a motion for a new trial upon the judge’s minutes.
    
      Baldwin & Blackmar, for resp’ts; Edwin Young, for app’lt.
   Sedgwick, C. J.

The work assigned by the defendants to the plaintiff to be done for them, was uncoupling of cars while they were slowly moving upon the rails. At the time of the occurrence in question, he was proceeding to uncouple in a manner in which he had been previously instructed. He stepped with his left foot upon the track, raising his left arm to uncouple the cars. His left foot fell into a hole between the bumpers of the cars, and as then caught, he moved some distance beyond the hole, while the cars were moving.

The negligence of defendants is predicated of their omission of duty to keep the place where the hole was, in such a state that the plaintiff, in the course of the work given to him, would not fall in it.

The hole, as it was called, was at some part of the top of a regular made pit, in which a wheel and ropes attached to it, were placed to manage cars upon the track above.

In the usual condition of affairs, a set of planks completely covered the hole, so that it was entirely safe to workmen walking over it.

These planks were taken up occasionally only, and for specific purposes connected with repairing the wheel or ropes In such instances they were pried up by a crow-bar or a like tool, and afterwards replaced.

On the day before the accident, the planks had been removed, and it may be assumed had been replaced with the exception of two, which had been injured in their removal, and in their stead two others were used. The plaintiff knew of the uncovering, but the jury were not bound t o find that he knew of the manner of the recovering, or that there was any imperfection in it.

-Upon the record of plaintiff’s testimony here, it was competent for the jury to find that he did not mean to testify that the pit was entirely uncovered, and that the hole that his foot fell m was the uncovered pit. They might find that the hole he meant was an imperfection in the covering, made by a short plank or one that was loose.

And here it may be said that the testimony of the numerous witnesses for the defense, who said that the hole was covered or was not uncovered, did not oblige the jury to find that their evidence was conclusive, that there was no imperfection in the covering in which the plaintiff’s foot might have fallen.

I know that the complaint charges that the hole wás open and uncovered, and these words were used through the trial, yet the actual issue referred to a space over the pit where the plaintiff’s foot might have fallen and where he testified it did fall.

I am of opinion that it was the duty of the master—that is, the defendants—to have a covering that would protect the servant in working above the pit. Evidently the method of covering was not of a kind, like a trap-door of a single piece, that a single motion may lift and return. These were single planks, unconnected with each other, and when they were taken off no cover existed, and the duty of the master returned to the point where it was in the first place; that is, to make the pit safe for the work men. At the least, it was for the jury to say whether the defendants had used due diligence in respect of their duty to provide a safe cover or covering.

It was not a risk of the plaintiff’s employment, which he took if he chose to enter the employment. In Muller v McKesson (73 N. Y., 204), where a servant was injured on the premises where he was employed, by a savage dog kept by the master, the court said, “ What were the risks of his employment here as it respects the dog? He was informed, it'is true, of the nature of the animal, but he was also told that the dog would be kept fastened, and the uniform habit was to notify him when the dog was loose. The most that ‘can be said is that he assumed the risks consequent upon the keeping of a ferocious dog, which was kept fastened, except when he was otherwise notified. Beyond this the plaintiff is entitled to the same protection as other persons;” The plaintiff had no reason to believe that the track was hot safe at all times when he was called to work upon it, .or that there was any risk.

• Whether the plaintiff was guilty of contributory negligence was for the jury to determine.

' I see no exception which calls for a reversal of the judgment.

Judgment and order affirmed, with costs.  