
    Mary Mahoney, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Master and servant—Negligence.
    Plaintiffs intestate was a brakeman in defendant's employ, and was-killed while coupling cars. He had, at Albion, coupled eleven cars loaded with stone to the train. These cars were uncoupled at Lockport to allow other cars to be taken out, and upon attempting to recouple them he was crushed by the cars coming together, the drawhead of one of the stone cars being forced under it by reason of the loss of the iron washers or plates intended to prevent such an occurrence. There was no proof as to-when they came off the rod, and intestate had not reported the car as out of order. Defendant’s inspectors had examined the car on its way to Albion and found it all right. Held, that plaintiff failed to make out a case against defendant, and should have been nonsuited, or a verdict directed against her.
    Appeal from a judgment entered in Niagara county, December 28, 1891, in favor of the plaintiff against the defendant, for $4,-445.07 damages and costs, and also from an order of the special term denying defendant’s motion for a new trial on case and exceptions.
    
      Charles A, Pooley, for app’lt; Richard Crowley, for resp’t.
   Lewis, J.

The deceased was in the defendant’s employ as a brakeman upon a freight train at the time he received the injuries which caused his death.

On the morning of the 15th of April, 1890, he left the city of Rochester upon a freight train for the city of Buffalo, by way of Albion and Lockport.

At the village of Albion there was attached to the train eleven cars loaded with stone for Buffalo.

The deceased coupled these cars onto the train.

When the train arrived at Lockport, he uncoupled the stone cars taken on at Albion, and took out of the train some cars ordered left at Lockport.

In attempting to again couple on the Albion cars the deceased was caught between the bumper of one of the cars and the draw-head of the other car, and was crushed so that he died in a short time.

Upon investigation, it was found that the drawhead on the end of the stone car, which the deceased had coupled onto the train at Albion, and which he was again attempting to couple to the other cars at Lockport when he was injured, was out of order.

Forming part of this drawhead, as originally constructed, were four iron washers or plates.

Bach of these plates was about two inches in thickness.

An iron rod, forming part of the drawhead, passed through these plates and was attached to a timber under the car.

The office of the plates was to prevent the drawhead from being forced too far under the car when it should come in contact with the drawhead of another car being coupled to it.

These plates were found to be missing from the rod.

The result was, when the two sections of _ the train came together, the defective drawhead was forced so far under the car as to permit the two cars that were being coupled to come so near together as to crush and kill the deceased, he having stepped in between them to effect the coupling.

It is somewhat doubtful if the plaintiff proved the deceased free from negligence contributing to his injuries.

Assuming, however, that the jury was justified in finding the deceased free from negligence contributing to his injuries, we think a new trial must be granted because of the failure of the plaintiff to establish that the defendant’s negligence caused the death of the intestate.

When the plaintiff rested her case, the only evidence she had adduced which it can be claimed tended to show negligence on the part of the defendant was, that the drawhead was found immediately after the accident to be out of order as stated.

There was no evidence showing or tending to show when or how the plates mentioned got off the rod.

Mahoney had that same afternoon, at the village of Albion, coupled this same drawhead, which was found to be out of order at Locbport, to the train.

If it was then out of order, it was his duty to immediately report it to the conductor of the train.

It is a reasonable inference that the plates were in their proper-place when Mahoney effected the coupling at Albion, and if so,, they must have been forced off after the coupling was effected at Albion that afternoon.

These plates were subjected to the severe strain of drawing-eleven heavily loaded cars.

The car originally had a drawhead at each end constructed, alike.

The plates upon the drawhead at the other end of this crippled car were found in good condition after the accident.

The foregoing is a brief statement of the evidence adduced by the plaintiff when she rested her case, and the defendant moved for a non-suit.

The proof of these facts, we think, did not throw upon the defendant the burden of showing how the defect in the drawhead occurred. 2 Thompson on Negligence, 1053. “ In an action by

an employee against his employer for injuries sustained by the former in the course of his employment, from defective appliances, the presumption is that the appliances were not defective, and. when it is shown that they were, then there is a further presumption that the employer had no notice or knowledge of this fact and was not negligently ignorant of it. Therefore, in such actions-the onusprobandi is upon the plaintiff to negative these presumptions in order to make out suprima facie case.”

It is stated in De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 125, that: “An employee in the service of a railroad corporation assumes the risks and dangers incident to the business in which he is engaged, and while the company is bound to furnish suitable and safe machinery and appliances for his use, having done-so, it is not liable for an injury resulting from their breaking or failure, unless it is shown that the corporation has been guilty of negligence in regard thereto.”

To the same effect is Painton v. The Northern Central Railway Co., 83 N. Y., 12, and C. C. & I. C. R. W. Co. v. Troesch, 68 Ill., 546.

The authorities referred to by the respondent’s counsel as holding a different doctrine are eases of injuries to passengers, where a very different doctrine obtains.

The defendant’s motion for a non-suit at the close of the plaintiff’s case being denied, the defendant introduced evidence tending' to show that it was the duty of a brakeman to report to his conductor any defect he may at any time find in the cars of a train, and that the deceased did not report this drawhead as out of condition; this defective car was not ' owned by the defendants, but was being used by it on this occasion ; it was taken into the defendant’s repair shop at Rochester on the 6th of March, 1890; one of its draft timbers being out of order, it was then bolted up; the car was otherwise in good repair at that time; after being thus repaired it was sent east to Lyons, and delivered to the Fall Brook Railroad Company; it returned on the 7th of April and passed through Rochester to Albion ; as it passed through Rochester it was inspected by a corps of inspectors employed by the defendant in that city, and was not reported out of order; had it been out of condition, it was the duty of the inspectors to thus report it; when it came into defendant’s use it was accepted by the defendant’s inspectors as in good condition; it was four or five years old; this car, with others, was taken from Rochester to Albion on the 7th day of April, 1890; and was there loaded with stone; it remained at Albion until it was taken on the day in question with ten other cars loaded with stone to Buffalo.

To discover the absence of these plates it was necessary to look under the car.

If the burden of proof was upon the defendant to show that the car had been properly inspected and was in good condition when taken at Albion, it must be held, we think, that it furnished the requisite evidence to establish these facts.

It was, as-we have seen, inspected at Rochester, when on its way to Albion.

It • was there loaded with stone, and was apparently in good condition when coupled to the train at Albion for Buffalo the day of the accident.

The drawhead in question being subjected to the strain of drawing the eleven heavily loaded cars, the only reasonable conclusion is that these plates were crushed by this severe strain, or in some way forced off the rod.

No other explanation of the defect would seem to be justified by the evidence.

We find nothing in these facts justifying the jury in holding that the defendant was guilty of negligence.

The respondent suggests that it was the duty of the conductor of the train to examine cars, and that he neglected his duty in that regard on this occasion.

Conductors, as well as brakemen, are expected to keep a general supervision of their trains, to see that crippled cars are cared for, and are not used when in a dangerous condition.

The conductor testifies that he performed his duty in that regard on the day in question, and there was no evidence contradicting his testimony.

But if a conductor or hrakeman neglect his duty in keeping watch of cars, and a co-employee on the train is injured in consequence of such neglect, he would have no cause of action against the company, for it would be the negligence of a co-employee that caused the accident. We think the plaintiff failed to make out a cause of action against the defendant, and that she should have been non-suited or a verdict directed against her, and that the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.  