
    Zachariah T. Allison, Appellant, v. The Long Clove Trap Rock Company, Respondent.
    
      Negligence — injury from a car, furnished with a temporary drake which failed to stop it, striking a driver while he was detaching a horse thm’efrom — assumption of the risk.
    
    In an action to recover damages for personal injuries- sustained by the plaintiff while employed by the defendant in a stone quarry, it appeared that a tramway led from the quarry to a stone crusher; that the tramway was level until it reached a point 370 feet from the stone crusher, from which point to the crusher there was a down grade; that rock was transported over the tramway by means of a car drawn by a horse, and that it was the plaintiff’s duty to drive the horse until the car reached the top of the descending grade and then to unhitch the horse and allow the car to travel the balance of the distance by gravity; that on the day of the accident, when the car had reached the top of the descending grade and had nearly stopped, the plaintiff stood at the side of the car and attempted to detach the horse therefrom, when the car struck him and threw him across the rail, with the result that his leg was crushed.
    It further appeared that, at the time of the accident, the defendant was using new cars which were not fitted with brakes; that, pending the making and attaching of proper brakes, the defendant’s foreman adopted a temporary device, not in general use, which consisted of a rope fastened to the framework of the car and wrapped three times around the rear axle, which rope was designed to be held by the brakeman standing behind the car and to be pulled by him when it was desirable to retard the speed thereof. The accident was caused by the inability of the brakeman to stop the car with this temporary device.
    
      Held, that it was error for the court to dismiss the complaint;
    That there was some evidence from which a jury might reasonably conclude that the accident occurred because of the insufficiency of the temporary device furnished in lieu of a brake, and that it was the duty of the court to submit the case to the jury, even though the evidence of the defendant’s negligence might he so slight that a verdict based upon it would be set aside;
    That, as the plaintiff had only been placed at work upon the car the day before the accident, and as a correct determination of the sufficiency or insufficiency of the temporary braking device might require special skill and judgment, it could not be said, as matter of law, that the plaintiff assumed the risks incident to the use of the temporary device;
    That, from the evidence, it did not appear whether the act of the plaintiff, in attempting to detach the horse from the car while the car was in motion, was an unnecessary and negligent act, or was a risk of his employment which he voluntarily assumed in reliance upon the sufficiency of the temporary braking device.
    Appeal by the plaintiff, Zachariah T, Allison, from a judgment, of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 29th day of June, 1900, upon the dismissal of the complaint by direction of the court after a trial at the. Rockland Trial Term, with notice of an intention to bring up for review upon such appeal the order directing the dismissal of the complaint, and refusing to submit the action to the jury.
    
      William. MeOauley, for the appellant.
    
      John W. Boothby, for the respondent. •
   Hirschberg, J.:

The plaintiff, while working for' the defendant in a quarry near the village of Haverstraw, on the Hudson river, on the 20th day of May, 1899, sustained injuries which resulted in. the amputation of his leg, and this action is brought to recover the damages. At the close of the case a nonsuit was directed by the learned trial justice, and this appeal is taken from the judgment entered thereon.

The accident occurred while the plaintiff was driving a horse hitched to a car loaded with three tons of rock upon a tramway on the side of a mountain, and which led from the quarry to a stone crusher several hundreds of feet distant. The road was level until it reached a point 370 feet from the crusher, but from that point to the crusher descended at a grade of 1 foot in 100. After driving the horse upon the level part of the tramway to the point referred to, it was the plaintiff’s duty to there unhitch the horse so that the car could go the rest of the way by gravity, and it was while he was so engaged on the day in question that the car ran against him and occasioned his injuries. The plaintiff testified that the defendant’s foreman instructed him to unhitch the horse at that point, and this statement was not denied by the foreman, although' he was called as a witness on behalf of the defendant.

Giving to the plaintiff, as we are bound to do under the circumstances, the benefit of the most favorable inferences deducible from the proof, it cannot be said that there was nothing for the consideration of a jury. The direct cause of the accident was the apparent inability of an employee of the defendant, named Flynn, to hold the car in check by means of the appliances furnished to him by the defendant for that purpose. The cars were new ones, just purchased by the defendant, and had been furnished by the manufacturer without brakes. The defendant was constructing proper-brakes with the intention of attaching them to the cars, and some of them were completed upon the day of the accident, but had not yet been attached. In the meantime the defendant used the cars for several days without brakes. The defendant’s foreman, without the direction of the defendant’s superintendent, adopted a u temporary device,” as the superintendent styled it, to act in place of a brake. This was a rope fastened to the framework of the car and wrapped three times around the rear axle, and was designed to be held by the brakeman standing behind the car and pulling upon it for the purpose of stopping and holding the car. It was claimed by the defendant that this device was- quite adequate so long as the rope was new and unworn by contact with the rough axle, but it was conceded that it was not an appliance in general use. There was no evidence of inspection between the time the rope was supplied as a brake and the time of the injury. At the time of the accident the brakeman Flynn was seen by the plaintiff in his proper-place pulling on the brake rope, but in spite of his efforts the car-continued on the down grade with accelerated motion. Here was some evidence from which a jury might reasonably conclude that the accident occurred because of the insufficiency of the appliance furnished for the uses designed, and even if the evidence of defendant’s negligence be so slight that a verdict based upon it would be set aside, it is now settled that it must be submitted to the jury. (Fealey v. Bull, 163 N. Y. 397; McDonald v. Metropolitan St. Ry. Co., 167 id. 66.)

Nor can it be said that the plaintiff assumed the risks incident to the use of this temporary appliance so as to bar a recovery as matter of law. He was only placed at work upon the car the day before the accident, and while it is true that the nature of the device employed to check the car was visible, its sufficiency or insufficiency would not necessarily be obvious to an ordinary observer, but might require special skill and judgment for a correct determination. Under such circumstances the workman is not held as matter of law to assume the risk of consequences which are not obvious, and the question becomes one for the jury. (Davidson v. Cornell, 132 N. Y. 228; Smith v. King, 74 App. Div. 1.)

It is claimed, however, that the plaintiff failed to establish his freedom from contributory negligence, and indeed that on the proof he was chargeable with negligence as matter of law. The case in this regard rests wholly on his own evidence as no one else who witnessed the accident testified at the trial. Flynn was not called by either side. According to the plaintiff’s story, he dismounted from the car when he reached the point of the descending grade, and was endeavoring to detach the horse, when the car, which had nearly stopped; started ahead again by reason of Flynn’s inability to hold it back, struck him and threw him down so that in some way his leg got across the rail and was crushed. The learned counsel for the respondent asserts in his brief that the plaintiff “got down off the car while it was in motion ; stepped in front of - it / stumbled, fell and was injured ; ” and that “ there was no necessity for the plaintiff to put his foot over the rail to get the pin out, but: he did so, and by doing so his leg was caught and injured.” If this is a correct statement of the occurrence, the nonsuit, of course, was proper. But the plaintiff persistently asserted the contrary. He testified: Flynn, at the time I got off the car, was pulling on the rope. I tried to release the horse by getting this pin out. And in getting that pin out I got knocked down. I reached under the oar and tried to pull the pin out. I was standing alongside the end of the car at the time. I did not succeed in getting the pin out. I was alongside of the oar just so I could reach, in to the pin. With my right hand I reached under to pull the pin out. With my left hand I had hold of the horse — the lines. The horse was standing still at the time. " This car was going slowly, just moving a little at the time I was trying to release the horse. Flynn, at that time, was pulling on the rope. There was a down grade at that place. In order to extend my hand in there under (the) car, and to get out that pin, it was necessary for me to bend my body — to extend it in the direction of the car. I did bend over in that position. It was then while I was in that position that the car pushed me down. The car started again before I got the horse loose. By The Couet : It hadn’t stopped altogether. It went a little faster when I started to unfasten the pin. By Mb. McCauley : I didn’t get the pin out. I didn’t get hold of the pin at all. Just got my hand to it. The front end of the car struck me. The outside of the front end. It knocked me down. I fell kind of face first on the outside of the track. The car caught my leg. * * * The car must have dragged my left leg over the rail. I did not put it over. By The Couet : There was no need in taking the pin out, to put either leg over the rail. I wasn’t inside of the rañl. Vou can reach by reaching the arm over; the car projects outside of the rail quite some.”

It is evident from this statement of the occurrence that the plaintiff could not be held chargeable with contributory negligence upon the assumption as claimed in the respondent’s brief that he deliberately stepped over the rail and in front of the moving car. It may be that he was guilty of negligence in standing at the side of the car and reaching for the pin before the car had fully stopped, and it may possibly be that that act constituted negligence as matter of law, but it may also be that it was a risk of his employment which he was obliged to assume in obeying instructions to detach the horse at that place, in reliance upon the power of the brakeman to stop the car while he was so doing, an act which would not have been necessarily fraught with danger or injury if the braking apparatus had been adequate. Excepting on the occasion in question Flynn had succeeded in stopping the car by means of the rope and the operation of unhitching the horse was always safely accomplished. The case was submitted in this court on the briefs, without argument, and the allegation of contributory negligence is predicated solely upon the suggestion that plaintiff’s injury' was caused by his getting down from the car and i/n front of it while it was still moving.” That suggestion has been shown to be unfounded. If on a new trial it shall be made to clearly appear that the plaintiff’s duty did not require him to make any attempt to * unhitch the horse until the hrakeman had succeeded in wholly stopping the car, the plaintiff’s act may very well have been such a negligent one as would preclude a recovery. On the present proof it is undisputed that he was instructed to release the horse at the point in question and it is to be noted that while lie could stop the horse there for that purpose, he could not stop the car. That was entirely under Flynn’s control so far as any means of control existed. It is not, therefore, plain whether the act of the plaintiff in endeavoring to unhitch the horse before the car had altogether stopped is to be viewed under the rules which govern the law of negligence or of assumed risks. In such cases even the burden of proof rests differently, being borne in the one case by the plaintiff and in the other by the defendant. The distinction in principle between contributory negligence and assumed risks has been recently pointed out by the Court of Appeals in the case of Dowd v. N. Y., O. & W. Ry. Co. (170 N. Y. 459), and what is there said is peculiarly applicable to the question under consideration.

The specific charge of contributory negligence alleged in the case at bar being without foundation, it would seem juster that the case should be disposed of now on the theory which the counsel has presented and on which it was apparently tried, rather than upon a. theory which under the proof as it now stands is at least of doubtful application. If the plaintiff’s injury resulted from the assumption of a risk of his employment in necessary exposure, while the ' car was still in motion, to danger from such movements as it might make in spite of the brakeman’s efforts to control it, the burden of proving the waiver implied by the assumption of the risk incident to the use of the rope as a brake rests upon the defendant (Dowd v. N. Y., O. & W. Ry. Co., supra), and has not been successfully borne upon the record as now presented. If, on the other hand, the injury resulted from a negligent exposure to risk which the plain> tiff’s duty did not require, he must, of course, fail in the action on well-settled principles of the law of negligence.

It is further urged on behalf of the respondent that the accident occurred because the plaintiff had substituted a contrivance- of his own invention in place of the one which had been furnished by the master, which contrivance was designed to enable him to unhitch the horse while the car was in motion which could not have been done with the apparatus originally supplied. If this is true the nonsuit was fully justified, but ■ the proof wholly fails to sustain the contention. As originally arranged, the horse was hitched to the car by means of a rope, the front end of which was fastened to the whiffletree. There was a ring on the other end of the rope, and this was slipped between the two perforated lips of a cast iron drawhead attached to the deadwood of the car, and an iron pin was thrust through the lips of the drawhead and the intervening ring. The plaintiff then was obliged to take the pin out in order to release the horse, and to carry the pin in his hand until the horse was again hitched to the car. He caused the defendant’s blacksmith to make him a longer pin with a top projecting above the lips of the draw-head which would hold the hitching ring and which ring could then be slipped on and off the pin while the latter remained stationary in the drawhead. Whether this contrivance was a good or a bad one is quite immaterial inasmuch as it is plain that the accident was in no way occasioned by its use. The plaintiff was injured while endeavoring to reach the pin, and it could make no difference whether he was endeavoring to reach the pin which the defendant had furnished or the one which he himself had caused to be made. If the change was effected in order to enable him to remove the horse while the car was in motion it would indeed seriously affect the disposition to be made of the case. But this the plaintiff positively denies, and insists without contradiction that the only difference was that in_ the first instance the ring was held by the pin between the lips of the drawhead, while afterwards it rested upon the head of the pin. The change, therefore, has no significance except in its possible "bearing upon the question whether the plaintiff did indeed improperly endeavor to release the horse while the car was in motion as an unnecessary and negligent act, and not as an incident to his employment, the risk of which he voluntarily assumed in reliance upon the protection which a proper braking apparatus would afford.

Under all the circumstances, we think a new trial should be granted.

All concurred.

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