
    Julia Hanrahan, as Administratrix, etc., of Jeremiah Hanrahan, Deceased, Respondent, v. The Brooklyn Elevated Railroad Company, Appellant.
    
      Negligence — a car inspector killed by a ear “kicked,” against the car lie was inspecting'—master not liable for repair, of defects arising in the daily use of an appliance—failure for unexplained cause’of a brake to work—burden of proof in the . ' case of a liability for only one of two causes. ■'
    The master must keep an appliance in good order, and •cannot delegate that duty to another and thus escape resp.onsibility for its violation, but he. is not bound to'repair defects arising in the daily use of appliances for which, proper and suitable materials .are-supplied, which , may be easily remedied by workmen. and; do not require the kelp of skilled mechanics. '
    Evidence that a car inspector of eight years’ experience, who, without giving the customary notice-, went into a space of- two or three feet between an engine and. - a train, from which it liad just, been uncoupled, and while-' there was crushed between the engine and the train as the latter was suddenly driven forward by two-cars which had-been “kicked” from a yard upon the samé track, and-' whose momentum the brakeman could not check in time owing to the failure of the brakes on- the first car :to work, does not establish -negligence on the part of the railroad company, when it. appears that the colliding ear had been inspected by the proper person before it left the yard ¡'.and the brakes and ' chains had been found to be in good condition, -.as they also proved to be when . tested a few hours after the accident, and it is. uncertain whether the failure of , the brakes was due. to an'accumulation -of. snow or t’o .some. cause intervening after the -car.left the- yard, and ,of which the railroad - company could have no notice. ; ■
    Where an' accident is occasioned by one of two causes, for óné of which a defendant is' responsible, and for the other of which it is hot responsible, the plaintiff must fail if Ms evidence does not show that the damage was produced by the former cause, or if it is just as probable that it was produced by the one cause, as by the other.
    Appeal by the defendant, The Brooklyn Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of November, 1896, dénying the defendant’s motion for a new trial made upon the minutes.
    
      JR. Percy Chittenden, for the appellant.
    
      Lul¿e D. Stapleton, for the respondent.
   Goodrich, P. J.:

On March 2, 1896, the plaintiff’s intestate, Jeremiah Hanrahan, was killed at the Van Sicklen avenue station of defendant’s elevated railroad. He had been car inspector for eight years. It was the custom of the company to make up its trains at Van Sicklen avenue, where, at the time of the accident, a train consisting of an engine and three cars had just come in. The engine had been uncoupled from the cars, leaving a space of two or three feet between the engine and the rest of the train. Hanrahan entered this open space to. inspect something on the front of the first car, and it does not appear that he took any precautions against danger. While standing there two other cars, from what is known as the D. 0. yard, on Broadway, several blocks distant, were shunted out of that yard by an engine to be kicked ” down, that is, to be run out to the rest of the train, their movement being assisted by a down grade. A brakeman was standing on the platform of the forward end of 212, which was the first of the two cars, and, as he approached the standing train, he attempted to check the movement of the two cars with the brake j but, for some unexplained reason, either because the chain on the brake failed to wind around the staff of the brake properly, or because ice and snow had gathered between the wheels and the shoes of the brake, he was unable to wind up the brake sufficiently to bring the shoes into immediate contact with the -wheels, in consequence of which the momentum of the two cars could not be checked, and they struck the rear of the standing train with such velocity that the three cars were driven ahead,-closing the space between them and the-, engine so quickly that H-an-rahan was crushed between . the -engine and- the car and received injuries from which he died. ■ ■ •

_ At the. close of the plaintiff’s evidence the defendant' moved for .a dismissal of the complaint,- which motion was renewed at the close . •of the-whole evidence, on the grounds that the evidence showed that the deceased was guilty of contributory negligence, that tl-ie ■accident was occasioned by a. risk of his employment, and'that there was no evidence of negligence on. the part of the defendant.. The motion was denied under the defendant’s exception.

The jury found a verdict' for .$5,000, and' from the judgment .-entered thereon this appeal.is taken.. • -.'

The defendant contends that the deceased was guilty of contributory negligence in failing, to use proper care for his own .safety; that there was no sufficient proof of defendant’s negligence in failing to supply a proper brake; that it had no. notice'that the.- -brake' was . ■defective; and that if the chain was defective, it was the duty of. one Herbert, a f ello w7ser van t pf the deceased, to discover and report it before the cars left the I).. 0. yard,-and'for his failure- to do so the defendant is not liable-; and that, unless -the defect was discernible by reasonable inspection, or if it arose while the car was going from the D. 0...yard to the standing.train,.it was .one of the ordinary risks of Hanrahan’s employment for which the defendant is not liable. • •

Upon the question of Hanrahan’s contributory negligence -it ■appears that he was a car inspector at Van Sickleñ avenue.- West-erfield, called as'a witness for the plaintiff, testified-: “.I had seen ITanrahan around there that morning before this accident happened, ■and on many occasions before I had seen him both on the structure- •and on- the track inspecting, and his inspection was of the trucks - underneath the cars, all parts of the'car — the drawbars .and all that ■■sort óf thing. 1 couldn’t say liow long those two cars that I was riding Lad been at Van SI olden avenue. ITanrahan. got there first in the morning. It was his duty to inspect the cars at that station before they were sent out and when they came in.”

- There is a distinction to be observed as tó. the location of Ha-nra- . Iran’s duty, both as to time and. place. I think -that the fair con- ■ struction of the evidence is that it was his duty to inspect the cars at and only after their arrival at the Van Sicklen avenue station and not in the D. O. yard; so that, if the alleged defect in the brake occurred • before the car left the D. O. yard, or before it arrived at the Van Sicklen avenue station, it cannot fairly be said that his duty of inspection gave him opportunity to know that the brake was out of order, and I assume this to be the fact in my discussion of the situation; but he knew that the method of making up the train already mentioned was the usual one, and also that it was a snowy and freezing morning, and that if on such a morning the operation of the brake was liable to be disordered by reason of the snow or other cause, so that there was danger that the brakes would not work, or that the momentum of the cars could not he checked, he took upon himself the risk predicated upon this knowledge when he entered the space between the engine and the cars without notifying any one of his intention to do so.

Kelly, the engineer, called by the plaintiff as a witness, testified that when it was necessary for Hanráhan to go between the cars it was the custom to notify somebody of the fact, because in coupling cars there was always some movement; and that no such notice was given by TIanrahan on this occasion. He was bound to know that there was danger of a collision between the two parts of the train which might suddenly and violently close the space between the engine and the forward car, so that either he took the risk of the situation or he was guilty of contributory negligence in entering the open space without proper precaution, notice or observation, and this prevents a recovery.

I am also of the opinion that the plaintiff has not shown negligence on the part of the defendant in furnishing improper appliances, sufficient to establish its liability. Car 212 was a Gilbert car, one of many similar ones used by the defendant, and it had been in use for a long time with this particular brake and chain, and was not different in its description from the other cars which were used by the company. Besides, Herbert, car inspector at the D. 0. yard, testified that he was on duty from the evening before until seven o’clock of the morning of the accident, which occurred at about six o’clock; that his duty was to look over brakes, wheels, shoes and all running gear at the yard, and that he inspected all such cars that morning; that he used a lamp in making the inspection and inspected the brakes, the running gear, the chains, the shoes and everything, to see if the ears were in good shape to go out; that they were in good condition, and. that no chains on the brakes of any one car were longer than those on the others.

There was also undisputed evidence that tlie foreman car inspector, O’Gara, and another car inspector, McDonald, within a few hours after the accident, no change being shown meanwhile, examined car 212 as .to the brakes, chains and running gear, and made a practical test of the brake and found that, upon winding it : up in the usual manner, the shoe was properly brought against the wheel. " ■ . ■

Webster, the foreman and master car builder of the Manhattan Elevated railroad in New York, also examined car 212, although' the time of his examination does not appear, and found- the brake . staff, chain and brake in good order, such as is usual on a car of this character. If this evidence is true, and it was not contradicted, the defendant discharged its duty of furnishing proper appliances and of careful inspection, and the failure of the brake ■ might have resulted from something which occurred after the cars left the D. 0. yard, and of which the defendant had no notice. This testimony becomes all the more important in view of the testimony of the plaintiff that the failure' of the chain to work was caused by its improper length, which gave so much slack that it could- not be taken up by the revolution of the brake staff. It would also seem to be true as a physical fact that if' the chain had .been too long it could not have wound -upwards, but would have wound downwards and below by reason of its owu weight. It is not proven .whether the accident, was caused in the manner claimed by the plaintiff or by the-accumulation of snow, or from some other cause.

It is a well-established principle that where the damage claimed was occasioned by one of two causes, for one of which a defendant is responsible, and for the other of which he is not responsible, the' plaintiff must fail if his evidence does not show that the damage was produced by the former cause; and that if it is just as. probable that it was caused by the one -as by the other, lie must also fail, as he ' is bound to establish his claim by a preponderance of evidence. (Searles v. Manhattan Ry. Co., 101 N. Y. 661; Dobbins v. Brown et al., 119 id. 188.)

If the inability to check the cars was caused solely by ice or snow which accumulated after the two cars left the D. 0. yard, and before their arrival at the Van Sicklen avenue station, the defendant is not liable therefor. Undoubtedly it is the duty of the master to keep an appliance in good order, and he cannot delegate that duty so as to escape that responsibility ; but this is the general rule, and has its qualifications and limitations. One of these is that it is not the master’s duty to repair defects arising in the daily use of the appliances, for which proper and suitable materials are supplied, and which may be easily remedied by the workman, not requiring the help of skilled mechanics. (Cregon v. Marston et al., 126 N. Y. 572.) Illustrations of this position will be found in McGee v. Boston Cordage Co. (139 Mass. 445); Johnson v. Boston Towboat Company (135 id. 209).

The plaintiff is also met by the fact that it does not. appear that there was any negligence of examination or defect in the brake before it left the yard. The brake had always worked properly before this time, and the master, who had notice of any defect, cannot be held liable for any sudden failure of the brake to do its duty between the time when the car left the D. 0. yard and that of the accident.

The learned counsel of the plaintiff cites several cases which are easily, distinguishable from the case at bar.

Lilly v. N. Y. C. & H. R. R. R. Co. (107 N. Y. 566) was a case where a brake was out of order, and the defendant had notice of the fact, and had attempted to repair it before the accident, but had' failed to make it work properly.

Doing v. N. Y., Ontario & Western R. Co. (151 N. Y. 579) was a case where cars were improperly and suddenly shunted into a repair shop, where the employee had no view of the exterior tracks, and no opportunity to see whether or not cars were coming in. ,

In Bushby v. N. Y., L. E. & W. R. R. Co. (107 N. Y. 374) it appeared that a stake on a lumber car, used to hold lumber in its place, broke in going around a curve, and that it was decayed, spongy and unsound, and that this defect was apparent upon inspection, and the court .held the defendant liable for failure to supply proper stakes.

Pantzar v. Tilly Foster Iron Mining Co. (99 N. Y. 368) was. a case where a workman was injured by the fall of' a mass of rock.

. It appeared that there had been a large and increasing crack' in the rock and that the attention of the superintendent had been called to ■ it before the accident, and that he had been warned of its dangerous character, but took no precautions to support it.

Bailey v. R., W. & O. R. R. Co. (139 N. Y. 302) was a case where damage was occasioned' to a brakeman On a'train. While he was trying to wind up the brake it broke by reason of the absence of a pin in the bottom of the brake, designed to hold the rod in place. The court said: ' ■ .

' The duty of' a railroad company to usé reasonable ' care to protect its employees from injury while engaged upon its trains, embraces the obligation to use reasonable care in furnishing suitable machinery in the first instance* and to keep it in repair so that their lives may not be exposed to unnecessary peril. The duty of proper inspection for the purpose of discovering defects' which may arise from, use, is a part, .of the duty owing by the Company to its servants. " Where an employee is injured from defective machinery the fact that he was so. injured does not alone raise a presumption of negligence, on the part of the company. ‘The. knowledge of. the defect must be brought home to the master, or proof given that .he was ignorant of the same through his own negligence or want of proper care.’ (Allen, J., Wright v. N. Y. C. R. R. Co., 25 N. Y. 566.)”

In Painton v. Northern Cent. Ry. Co. (83 N. Y. 7) the accident was caused by a defect occasioned by improper welding of an eye-' bolt, and the court held that the plaintiff did not make, out this' part of the case, On the ground that there was. no notice of the defect brought home to the defendant, nor evidence that. it could have beeii discovered by inspection. ■'

Fuller v. Jewett (80 N. Y. 46) arose out of the explosion of a boiler, and the court said that there, was ample evidence to show that the boiler liad been in a dangerous condition for some time; that the engine had been sent to the shop for repairs; that it had been improperly made, and that this, evidence justified the verdict of the jury for the plaintiff.

In Woods v. Long Island R. R. Co. (11 App. Div. 16), in which Mr. Justice Cullen wrote the opinion, the accident was very similar to the one in question. There a car was being kicked ” down to join a lot of cars, and, the brake failing to work, an expressman in one of the cars wras thrown down by the collision and injured. The court said: “ It was asserted that the (brake) rod was so adjusted on this car that, though the brake chain was wound up as far as possible, it would not press the shoes against the wheels. At the same time it was conceded that the apparatus Was in good condition and that the alleged failure of the brakes to work, if there was such failure, proceeded from the fact that the rod was not properly adjusted. * * * ' The question, therefore, is narrowed to this inquiry: Did the failure to properly adjust the rod constitute the car a defective appliance ? If so, it was a failure in the duty of the master, and if the defect proceeded from neglect on the part of any of its servants, the defendant was liable. Or was it a neglect or failure in the detail of the work ? If this, then the negligence, if any, was that of a fellow-servant, and the defendant was not liable.”

In the present action there is abundant evidence that there was no defect in the brake when it left the D. O. yard, and that the failure to work resulted from some accidental or unexplained cause. Until such explanation is made by the plaintiff he is not entitled to a recovery.

We have not deemed it necessary to express any opinion whether the negligence in inspection can be considered the negligence .of a fellow-servant, or as to any of the other questions raised by the defendant, as we find that it was reversible error to refuse a dismissal of the complaint on the grounds already stated.

The judgment and order should be reversed and a new trial granted.

All concurred, except Bartlett, J., who concurred solely on the ground of contributory negligence.

Judgment and order reversed and new trial granted, costs to abide the event.  