
    Edward Rock, App’lt, v. The Retsoff Mining Co., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Negligence—Gontbibtttoby—Railboads.
    Plaintiff, a.brakeman employed by defendant, was injured by being-knocked from the top of a box car by an overhead trestle. He had been engaged in his work for five months and had frequent occasion to pass under the trestle and knew that with ordinary cars there was little room to pass when standing upright. On the occasion of the accident he was standing on a new car which was higher than those ordinarily in use and with his back to the trestle as the train approached it. Held, that he was guilty of a degree of negligence which justified a dismissal of the complaint.
    Appeal by the plaintiff from a judgment dismissing the complaint entered on a non-suit granted at the Livingston circuit, and from an order of the same court denying the plaintiff’s motion for a new trial on the minutes.
    
      S. Hubbard, for app’lt; J. R. Strang, for resp’t.
   Dwight, P. J.

The plaintiff was a brakeman employed by the defendant on its railroad, two miles in length, running from its salt mine in the town of York in Livingston county to a station on the Western H. Y. & Pennsylvania Railroad at Piffard. The defendant had but one locomotive engine and one crew, or set of hands, which ran back and forth several times each day from the mine to the railroad station, taking empty cars, furnished by the railroad company, one way, and the same cars loaded with salt the other way. The crew consisted of an engineer and fireman, a conductor and two brakemen, of whom the plaintiff was one from December 16, 1887, to May 9, 1888, when the accident occurred which is the subject of this action. This consisted of his being knocked from the top of a box car by coming in contact with an overhead trestle connected with the defendant’s works.

The trestle had been maintained in the same form during the whole period of the plaintiff’s employment. It ran from the third story of the principal building to the ground on the west, and supported a track on which small cars were run up and drawn by cable. Under it a track was laid on which freight cars were drawn back and forth for the purpose of storage and for switching. The bottom of the trestle was fifteen feet ten inches above the west rail •of this track, and seventeen feet and nine inches above the east rail; from which it follows that it was sixteen feet nine and one half inches above the same level at the middle of the track. The ■ordinary box cars which were furnished to the defendant by the railroad company down, to about the 20th of February, were about eleven feet two inches from the top of the rail to the top of the running board in the middle of the roof. This gave a space between the running board of the common cars and the bottom of the trestle of only five feet seven and a half inches, which was less than the height of the plaintiff, viz: five feet, eight inches. From the running board the roof of the car sloped either way, so that on the east side of the car, or that next the building, there was ample room for a man even taller than the plaintiff to stand erect and pass under the trestle. The plaintiff testifies that he had been in the habit of passing under that trestle from six to twelve times a day on box cars ; that he was always on top of the cars and generally standing erect; that he had been under the trestle standing erect half a dozen times a day and never to his knowledge was required to stoop to get through. It would seem, therefore, that it must have been his habit, even on the ordinary box car, to stand off from the running board and on the side of the roof next the building. But on the occasion of the accident the car was more than a foot higher than the ordinary box cars mentioned above, being twelve feet four inches from the top of the rail to the top of the running board, leaving a space of only four feet five and a half inches between the running board and the trestle; and the plaintiff stood upright on the running board with his back to the trestle as his car approached it. We think the statement demonstrates a degree of negligence on his ¡iart which .plainly justified the dismissal of the complaint, whatever negligence was chargeable upon the defendant.

The plaintiff was perfectly familiar with the situation. lie knew from the daily experience of five months that there was nothing to spare between the running board, even of the common cars, and the trestle. He-lcnew that the large cars had been in use to some extent for three months, and that they were much higher than the common cars. If he had ever passed under the trestle upon one of them he must have learned that he could not stand upright even on the side next the building, and he was one of only two brakemen who operated those cars during the three months they had been in use. On this occasion he approached the car on the foot board of the engine for the purpose of coupling the two together, and having done so be mounted the car by the ladder on the end next the engine and passed along the running board to the other end to loosen the brake. In doing all this there was everything to remind him that the car was one of the large ones. Those cars were all new and newly painted ; their greater height was plainly perceptible even to a casual observer; the plaintiff himself says that when he loosened the brake he found it stiff because it was a new car; and yet as soon as he had loosened the brake he stepped up onto the running board and stood erect with his back to the trestle, and he must have been struck by it well down about his shoulders. It is difficult to believe that he could have been so inattentive to his own safety even if he had supposed that he was on one of the old cars. But such is his own testimony and under all the circumstances of this case it1 left the conclusion of contributory negligence unavoidable.

The complaint was properly dismissed and the judgment must be affirmed.

Judgment and order appealed from affirmed.

Macomber and Lewis, JJ., concur. ■  