
    Emily Ford, as Administratrix, Resp’t, v. The LakeShore and Michigan Southern Railway Company. App’lt.
    
      {Superior Court of Buffalo, General Terrm,
    
    
      Filed July 13,1888.)
    
    1. Negligence—Railroad—Manner of loading lumber on cars.
    In an action to recover damages for the death of plaintiff’s intestate;, which was caused by the alleged negligence of defendant, it appeared on the trial that the plaintiff’s intestate, who was employed by the defendant as a switchman, was killed by a heavy timber falling upon him from a car loaded with lumber by the defendant, while he was standing at the switch which he was employed to tend. The cars on which the lumber was, loaded were coal cars, with boxes about two feet high without brackets on the outside for stakes to hold the lumber as lumber cars usually have The lumber was so piled that one end of the timbers loaded was put in, the other extending over the end board. The lumber was so piled that one piece lapped the others The lumber was piled above the top of the boxes about two feet, the lapping of the pieces being relied upon to keep it on. There was evidence tending to show that the train would pass over several switches in its route, and that some jolting would be caused. Held, that whether the manner of loading and carrying this lumber was skillful, prudent and safe, was for the jury to decide.
    2. Same—Evidence of freedom from accident—Effect of.
    It does not avail for a witness to say that he had known of no like accident, or to affirm in general language, that the manner of doing a thing was. according to the mode adopted by the defendant. The facts should be proved upon which a defendant claims that the mode adopted, and upon which he relied, had been established by experience to be safe, so that the court or jury may judge of his right to rely on such experience.
    3. Same—When railroad fails to promulgate bulbs as to manner of CARRYING FREIGHT—ACTS OF FOREMEN BECOME ACTS OF RAILROAD.
    The proofs tended to show that the defendant had never promulgated any rules, or given any direction as to the manner of loading lumber, nor as to the kind of cars to be used for its transportation over its road. There was evidence tending to show that the defendant left all of that part of its duty to the foremen, who superintended the loading of the lumber. Held, that these foremen stood in the place of the defendant, and that their acts were the acts of the defendant.
    This action was brought for alleged negligence on the part of the defendant, causing the death of the plaintiff’s husband, John Ford, who was employed by the defendant as a switchman, by reason of a heavy timber falling upon him from a car loaded with lumber by the defendant while he was standing at the switch which Re was employed to tend. The cars used on this occasion Ry the defendant were gondola cars, some of the witnesses calling them coal cars. They were not regular lumber cars, but cars with boxes, from eighteen inches to two feet high, without brackets on the outside for stakes to hold the lumber, as lumber cars usually have. The cars that had end-boards dropping down were loaded flat, and where the end-board was stationary, one end of the timbers loaded was put in, the other extending over the end-board. The lumber was so piled that one piece lapped the others, with the object of binding the load. The lumber was piled above the top of the boxes, a foot and a half to two feet. The lapping of the pieces of timber was relied upon to keep it on. The cars were loaded by the defendant’s employees, and the method in which they were loaded was directed by another employee, who was a foreman in the defendant’s yard. The lumber was to be drawn about a mile to the shops of the Buffalo Oar Manufacturing Co. There was evidence tending to show that the train would pass over several switches in its route, and that some jolting would be caused. While the train was passing the switch at which the plaintiff's intestate was placed, several pieces of the timber fell off from one of the cars upon the switch-man, killing him. The lumber so loaded, consisted of pieces of timber intended for car sills, and they were twenty-eight feet in length, five and a quarter inches thick, and eight and a quarter inches wide. Some of the witnesses testified, that while ordinary lumber cars with stakes are used, they had seen these gondola cars used, and had heard of no accident before. The defendant’s foreman testified that, “ for such lumber as that gondolas are used.
    
      When they are making short hauls, we load the pile up so they shall bind each other and bind the load in the center; that is the way these cars was loaded.” The foreman and assistant foreman testified, that they at the time examined the loads and considered the manner of loading safe.
    The jury found a verdict for $4,000, and the court sent the exceptions to the general term in the first instance.
    
      James Frazier Gluck for app’lt; Tracy B. Becker, for resp’t.
   Beckwith, Ch. J

—In the argument presented by the learned counsel for the defendant, he assumes a proposition which, as it seems to me, is not established by the evidence; he assumes that the manner of loading and carrying lumber, practiced on the occasion when the plaintiff’s intestate lost his life, was a mode which had been adopted and tried in a great many instances, and uniformly pursued in the business of the defendant for a long time, “perhaps for years,” and that in all that period, and in all such experience, no similar accident had happened; that, on the occasion in .question, the defendant loaded and carried the timbers, as it had always uniformly done, without a mishap; and, consequently, that the defendant failed to establish any facts upon which, as ground for inference of negligence, the case could be submitted to the jury, the idea being that, where universal experience has established the safety of a thing or process, the plaintiff must prove the existence of some special defect that has crept into the thing, or some special omission of customary usage with respect to the process; and he cites in support of his position, amongst other cases, the following decisions of the court of appeals: Dougan v. Champlain Transportation Company, 56 N, Y., 1; Loftus v. Union Ferry Company, 84 id., 455; Burke v. Witherbee, 98 id., 562; Marsh v. Chickering, 101 id., 396; Laflin v. Buffalo and South Western R. R. Co., 106 id.. 136; 8 N. Y. State Rep., 596.

In Dougan v. Champlain Transportation Company, the form of gangway in question had been in use upon all of the steamboats on Lake Champlain for years, and there was no proof tending to show that any one had ever before fallen, and gone under the railing overboard. In Loftus v. Union Ferry Co., forty millions of people annually passed over the •defendant’s ferries, and, until the occurrence in question, no accident had happened from any person falling or getting through the space in the guard. In Burke v. Witherbee, the judge, writing the opinion, says: “In the mine alone, cars drawn by a hook must have made several hundred thousand passages without a single accident. What more could any reasonable or prudent man have to justify him in believing that this convenient appliance was also a safe and proper one.”

In Marsh v. Chickering, the ladder which slipped, causing the plaintiff’s hurt, had been in use by him safely for six weeks. In the case of Hubbell v. City of Yonkers, it appeared that the street had been in the same condition since its opening over ten years before, and that no similar accident had occurred.

In Lajlin v. Buffalo and Southwestern R. R. Co., the platform had been used for many years by passengers, and prior to the accident, no one had been injured, or had suffered any inconvenience on account of the distance from the cars to the platform

The cases cited all recognize a truth, which is but a law, relating to the operations of the human mind, that what has been noticed in infinite instances to be a fact or incident, attendant upon certain circumstances, will be reposed upon as a fact or incident inseparable from the same circumstances. The scientist, who investigates the operations of nature, and discovers the constant recurrence of a fact with certain circumstances, relies upon the truth of its permanency of place and connection in the order of the physical world, and makes it a premiss in his reasoning. The inference is irresistible, that what has pToved through a long experience to be true or sufficient, will continue to be so, and practical men in all the affairs of life rely upon such a deduction. In the cases cited, the fact that long experience had demonstrated the continuous and unexceptive sufficiency and safety of the appliances, the fact that through a vast number of trials, and up to the time of the accident in question, the appliances had proved to be sufficient, were admitted or conclusively proved, and afforded a ground for the court to say, as a matter of law, no evidence being given of a chance defect or of a fault occurring, which skill or prudence would have discovered, that the attention exercised by the defendant, was within the limits of ordinary or reasonable care. In the case at bar, the proof in this respect was deficient, and the court would not have been justified in non-suiting the plaintiff, on the grounds that the mode of handling the lumber adopted on the occasion when Ford lost his life, had been demonstrated by experience to be a safe one, and the plaintiff had failed to point out any special defect that had occurred in the appliances, or special omission of ordinary duty. It does not avail, for a witness to say, that he had known of no like accident, or to affirm in general language, that the manner of doing a thing was according to the mode adopted by the defendant. The facts should be proved upon which a defendant claims that the mode adopted and upon which he relied, had been established by experience to be safe, so that the court or jury may judge of his right to rely on such experience. The evidence here fails to show such an extent of practice of the method the defendant adopted in carrying the lumber, as is necessary to enable the court to say, as a matter of law, that the defendant’s conduct was proper. The trial judge was, therefore, right in refusing to non-suit the plaintiff, on the ground so far considered.

The question remains, whether there was otherwise evidence for the jury.

The proofs tended to show, that the defendant had never promulgated any rules, or given any direction as to the manner of loading lumber, nor as to the kind of cars to be used for. its transportation over its road. The importance and extent of the business of transporting lumber, would seem to require the adoption of some system on the part of railroad companies, having regard to the safety of their servants, and others. But in this case, the evidence was such as to allow a finding by the jury, that the defendant left all that part of its duty to the foremen, who superintended the loading of the lumber. These foremen, therefore, stood in the place of the defendant, and their acts were the acts of the defendant. Crispin v. Babbitt, 81 N. Y., 516; Anthony v. Leeret, 105 N. Y., 600; Abel v. President, etc., D. and H. C. Co., 103 N. Y., 581; 4 N, Y. State Rep., 269.

There is some evidence tending to show, that the defendant’s foremen had adopted, as a proper mode of loading and carrying lumber and timber, the mode followed on the occasion when the plaintiff’s intestate was killed, that is to say, the piling it on coal cars and heaping it roof-shaped above the lateral supports or box sides of the cars, relying on the width of base and gravity of the pieces of timber to keep them in place. There is evidence, that they, in their minds, had fixed upon this method as suitable, although there was not evidence of such a uniform and continued test of its sufficiency by use, as would force upon a man’s mind a conclusion that it was a safe method.

The defendant claims this mode was skilful and prudent. Whether it was or not, involves a consideration of the complex subject of the car, its shape, box, want of stakes and the heaping of the timber above the box. The plaintiff gave evidence, showing the character of the cars, the height of the boxes, the omission of the stakes, the manner of piling the timber on the car box, the length, thickness and width of the timbers. The timbers were about twenty, eight feet in length, eight and one-quarter inches wide, and five and one-fourth inches thick. •

The proof of all of these circumstances, together with the facts relating to the distance the timber was to be hauled, the possibility' of the loose timbers with a width of eight and one-fourth inches, falling off on the switches to be crossed, and the effect upon the load of the jolt in crossing the switches, altogether made a fair question for the jury, whether the manner of loading, and the mode and means-of carrying this lumber, which were the acts of the defendant, were reasonably skilful, prudent and safe. The plaintiff says they were not, and the facts, I think, were-such as necessarily carried the case to the jury. The defendant says the manner and mode were sufficient, because-experience had demonstrated them to be so. But as I have shown, the proofs fail to establish the facts which warrant the legal deduction of reasonable care on the part of the defendant, and without that deduction the case was one for the jury. A careful examination of the testimony will fail to disclose the data for such a legal inference.

Some of the defendant’s requests of the court to charge were made on the theory, that experience had justified the defendant’s mode of loading and carrying the lumber; that,, as a matter of law, there was no negligence or want of skill in the mode. If that supposition were correct, it would have been the duty of the court to charge, that the plaintiff must establish some chance defect in the car, or some omission of a specific duty, some special defect of thing or process, which reasonable care would have detected. But, as I look at the evidence, the question is the ordinary one, whether the means and appliances used by the defendant were reasonably prudent, having regard to-its duty toward its servants.

The defendant’s counsel requested the court to charge that, “ Unless the jury believe that in the exercise of ordinary care the defendant could have foreseen that this accident would probably happen by loading the cars in the manner in which they did, they must find for the defendant.” The court declined to change his charge. In this, I think, he did no wrong to the defendant. A bare, isolated request, though containing a correct proposition of law, the request seeming to purport something different from the instructions already given, may sometimes mislead a jury, and may be refused when the charge has substantially covered the case made by the evidence.

Literally the request was that the defendant must have been able to foresee this particular accident. The court, as it seems to me, had already given the instruction. The court stated with great particularity all the facts, and submitted the question to the jury, whether the “defendant disregarded what would be reasonably suggested to the mind of an ordinarily prudent person in the manner and method in which this lumber was loaded.” And the court further said to the jury,that if the accident “was-not within the reasonable contemplation of the defendant —if it happened under these circumstances after the defendant had exercised such a degree of caution and prudence to prevent such accident, then the defendant becomes relieved from liability, and your verdict should be for the defendant.”

If I am right in the conclusion that the facts proved would not warrant a legal inference, that the defendant was free from negligence, because experience had not established the safety of its mode of loading and moving the lumber, then the charge of the court was as favorable to the defendant as could be asked, and its refusal to charge-the requests was not error.

The plaintiff should have judgment on the verdict, with costs.

Titus, J., concurs; Hatch, J., not sitting.  