
    Patrick J. McLarney, Resp’t, v. Long Island Railroad Company, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed January 7, 1895.)
    
    Negligence—Contributory—Question of fact.
    The question of plaintiff's contributory negligence was held, under all the circumstances of the case, to be one of fact for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    v W. C. Beecher, for app’lt; Charles StecMer {Alfred Sleekier, of counsel), for resp’t.
   Freedman, J.

This action was brought to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant. The plaintiff was a brabeman in defendant’s employ. He was injured at about 8 o’clock in the evening of July 29, 1892, while in the act of coupling a train of cars to the engine, as he had been .directed to do by the acting superintendent of the road. The engine should have had attached to it a so-called “bustle,”' which is a large piece of metal to be inserted between the locomotive and the head car, to keep the car and engine steady and prevent vibration. It is of sufficient size to protect a brakeman in the act of coupling the cars to the engine. The engine in question had no such bustle attached, and, as a result, plaintiff’s body got caught between the car and the engine, and he was severely injured. It was undoubtedly part of plaintiff’s duty at the time to see that everything was in its place and in order, and, if not, report to the engineer; but, unfortunately for the plaintiff, his lantern had gone out a few minutes before, and he had not had time to relight it. He was not aware of the fact that the engine did not have the customary bustle attached to it, and he first noticed its absence when the engine was almost on top of him, and when it was too late for him to escape. Under all the circumstances, the question of plaintiff’s contributory negligence was a question of fact for the jury, and’, as such, it was properly submitted.

The question relating to defendant’s negligence arising from the absence of the bustle was, upon all the facts disclosed by the whole case, also a question of fact for the jury, and, as such, it was submitted in every aspect that could be taken. The jury were specifically instructed that, if the absence of the bustle was due to any act or omission of any fellow servant of the plaintiff, the defendant was not liable; and, furthermore, that the plaintiff had no cause of action if, under all the circumstances, the absence of the bustle constituted a risk incidental to his employment which he had assumed. Taken together, the charge of the learned trial judge carefully guarded every right which the defendant had. Upon the whole case, no reason appears which would warrant the disturbance of the verdict. The judgment and order should be affirmed, with costs.  