
    Elizabeth Byrnes, as Adm’rx, etc., Resp’t, v. The New York, Lake Erie and Western Railroad Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Negligence—Master and servant—When master not liable.
    In an action to recover for the killing of the plaintiff’s intestate, while employed as a brakeman by the defendant, sustained while engaged in coupling a freight car to a train, both being in motion at the time, it appeared that after setting the brake of the train he got down and ran toward and ascended the freight car and attempted to apply the brake. It appeared that the car before it was loaded, was in perfect condition, with a brake in good order and adequate for the purpose for which it was intended, but by the negligence of the servants of the owner of' the lumber who loaded the car the lumber was so placed against the brake that it refused to act and the plaintiff’s intestate was caught and crushed between the car and-the train by force of the collision. It further appeared that it was part of the duty of the station master to see that the car was properly loaded before it was taken away. Held, that the defendant having fulfiled its duty as master by providing a system and competent servants for the inspection of cars, cannot be held liable for their negligence.
    2. Same—When liability not changed.
    Nor is the responsibility in any way changed by the fact that the car was loaded by the servants of the owner of the lumber. Daneorth, J., dissenting.
    3. Same—What assumed on motion eor non-suit. a
    Where a motion for a non-suit is made on the ground that no negligence of the master is proven, for the purposes of such motion it must be assumed that all the evidence on the part of the plaintiff is true and all fair inferences therefrom, favorable to the plaintiff, must be indulged in, and that upon all such evidence and inferences no negligence has been shown.
    Appeal from a judgment, supreme court, general term, second department, affirming a judgment and order denying a new trial on the minutes.
    This is an action by the administratrix of Sylvester Byrnes for the recovery of damages resulting in his death.
    Byrnes was a brakeman in the service of the defendant, on a freight train, which ran between Port Jervis and Deposit. On the 25th day of February, 1884, his train was going east, and there was a car of lumber on a side track at Lordville to be taken into his train. When the train approached Lordville the engine was loosened from it while in motion and ran down with greater speed than the disconnected train to the vicinity of the lumber car. The car stood upon a switch on the west, side of the track, and was connected with the main track at one end only, being what is known as a blind switch. To start the car and run. it upon the main track, one end of a bar of wood, called a stake, was placed at the rear end of the engine after it passed the lumber car, and the other end against the front or east end of the lumber car, and then the engine was started back, propelling the car along the switch and upon the main track. Byrnes was on top of the train, and after setting the brake there, went down and ascended the lumber car then in motion, and reached the brake and made some motion to turn it. At that instant the lumber car and the train came together with violence, and Byrnes was caught between it and the car behind, and received injuries from which he died.
    The lumber was loaded by Charles Bearmer, an employee of the owner, who testified that he loaded the lumber against the brake rod, and when he came to the brake wheel he put it outside. On his cross-examination, he said he placed the lumber even with the front end of the car, but projecting over the end at which the brake was that Byrnes endeavored to reach and secure. This testimony was contradicted.
    
      Lewis E. Carr, for app’lt; John W. Lyon, for resp’t.
    
      
       Reversing 14 N. Y. State Rep., 554.
    
   Peckham, J.

—We may assume that it was not only the duty of the defendant to furnish a proper car with safe appliances, in good repair, but that the defendant, as master, owed .the further duty to the servant to provide a proper system and competent men for the inspection of cars after they were loaded and before they were to be used. The evidence in this case shows that the defendant had complied with this duty. It shows that it was the duty of the station-master, at the station where the car was loaded, to either inspect the car himself or to have some of his men inspect it, after it was loaded and before it was taken out. The defendant having fulfilled its duty as a master by providing a system and competent servants for the inspection of cars, and having imposed the duty of such inspection upon the station agent and his servants, cannot be held responsible for the negligence of such servants. In carrying out such inspection the station agent was acting as an employee of defendant, and any neglect of his in regard to such inspection, and by which an accident happened to any other servant, was the neglect of a co-employee and not the neglect of the master.

The evidence shows that the car, before it was loaded, was in perfect condition, with a brake in good order and, entirely adequate for the purpose for which it was intended. By the negligence of the person who loaded the car, the lumber was placed against the brake-rod and also against the wheel at the top of the brake, so that it thereby became impossible to use the brake. This is the contention on the part of the plaintiff. The fact was contested by the defendant, upon whose part evidence was given that the lumber was properly loaded and that the brake was in good order, and that the accident occurred on account of the negligent manner in which the lumber car was “staked” out, while the train was approaching at such a speed. But for this purpose we must assume that the car was improperly loaded, and the brake rendered useless for that reason. It must also be assumed that if the station-master or his servant had done his duty, and had inspected the car before it was “staked” out, the improper loading would have been discovered and measures taken which would have prevented the accident.

Nevertheless, we think the defendant had fulfilled its duty to the servants in its employ when it furnished a perfectly safe car and appliances, and when it also provided a system of inspection of cars, and proper persons to inspect them, after they were loaded and before they were to be taken away. _ The failure to inspect, or if inspection were made, the failure to rectify the improper loading by which the brake was rendered useless, was not the failure of the master to fulfill his duty to his servant, but it was the negligence of a co-servant in carrying out the orders of the master. The master is not an insurer that all his servants shall perform their duty, and he performs his duty to the servant in this regard in providing a system of inspection and entrusting its performance to competent hands. If, thereafter, such servants are guilty of negligence, the master is not responsible therefor to a co-servant.

We do not see that the question is in any way altered by the fact that the car was loaded by the servants of the owner of the lumber which was placed upon it. Whoever loaded it, the master had provided for an inspection of the car before it was to be taken away, and if the inspection were neglected, it was still the same neglect of a servant of the defendant to do that which he ought to have done, and such neglect was not that of the master in fulfilling any of the duties which he owed as master to his servants. It cannot, we think, be properly contended that the master fails to provide a car which is a safe and proper, one, or that he fails to provide one with' proper appliances, because through the negligent manner in which the car is loaded the appliance is on that account only, made useless for the purpose for which it was intended. The fact still remains that the car was in good condition, the brake in proper repair, fit for the use it was placed there for. It was rendered useless not from any defect in the brake itself, but only from the fact that the person who loaded the car had improperly and negligently performed his duty. ¡

It may be conceded that it was the duty of defendant to provide rules for inspecting the car after it was loaded, and proper men to carry out such rules, but when it did so, it did all that it could be required to do. To carry out its rules, necessitated the employment of servants, and a negligent loading of a car, which was subsequently negligently inspected, or not inspected at all, could not alter the fact that the master had supplied originally a perfect car, and that the fault was not in the character of the car or in its appliances, but simply in the negligent loading of it.

A question has arisen, however, in this case, whether the point was sufficiently raised on the trial. At the end of the plaintiff’s evidence, and again, when all the evidence was in, the defendant moved for a non-suit, on the ground, among others, that there was no evidence, of negligence on the part of the master, the employer of the deceased. It is argued that the real contest in the case was over the question of fact, whether the car had been improperly or negligently loaded, and that the defendant’s evidence had in truth been confined to an attempt to prove that the lumber had not been placed against the brake, and that it was entirely free, and that the accident had occurred because of the improper manner in which the car had been ‘ staked ” out, and pushed at too rapid a rate towards the train, which was itself moving towards the car. There was unquestionably a sharp issue made on that point during the trial. But there was also evidence already referred to which showed that the master had in reality performed all the duty resting upon it for the proper protection of its servants.

We think the ground of the motion for a nonsuit above mentioned sufficiently raised the question of the failure of proof of any negligence of the master. The almost universal practice in the trial of actions of this nature is to move for a nonsuit, on the ground that no negligence of the defendant has been shown. It is rare, indeed, that the defendant goes into details for the purpose of showing why he claims that no negligence has been shown, or in what particular respect the plaintiff has failed in his proof. The plaintiff always claims that upon all the facts in the case, the question of whether there was, or was not, negligence is one for the jury to answer and not for the court. The motion for a nonsuit on the ground that no negligence has been shown, is predicated also upon all the evidence in the case; and it is assumed for the purpose of the motion that the evidence upon the part of the plaintiff is true, and the claim is then made that upon such assumption no negligence has been shown, or no question is in the case proper for a jury to pass upon.

The counsel for the defendant, in orally arguing his motion, frequently enlarges upon it and presents the case, as he regards it, in detail, and claims as to each separate piece of evidence, and as to all combined, that no question has been made for the jury. These arguments are never incorporated in the case, but any argument that can legitimately be adduced from the ground taken, and which is a fair inference from the evidence, has always, as we think, been regarded as sufficiently raised under the general motion ‘on the ground of a failure to show any negligence. The inference of negligence may be raised in such various ways, and from so many different facts, that an attempt to specify each argument that might be urged as a ground for the motion might be somewhat dangerous in its nature, on the theory that such a specification being made, no other argument, although it might clearly appear from the evidence, could be thereafter raised. It is the nature of such a motion in such a case that it should be broad, that it should assume all the evidence on the part of the plaintiff to be true, and that all fair inferences therefrom which would be favorable to the plaintiff should be indulged in, and still the claim is made that upon all such evidence and inference no negligence has been proved.

. In this case the motion was on the ground that no negligence of the master was proved. What other way of raising this question could have been taken ? How was it to be made more specific ? The motion must have assumed the truth of the plaintiff’s evidence, which, if believed, showed that the car had been negligently and improperly loaded. If the master were responsible for such negligence then the defendant was responsible for the accident, unless it were contended that the accident did not happen from that cause, and if that were the contention, the natural ground for the motion would have been, as it seems to us, that the negligence of the master did not cause the accident. This was evidently the view taken of the case by the counsel for the defendant, for he immediately proceeded to state that fact as a separate ground for his motion, for he said there was no evidence that it was in consequence of any defect in the brake that the decedent received the injury which caused his death. The statement that there was no negligence on the part of the master must, therefore, as it seems to us, have been plainly directed to the point that the master was not responsible for the negligent loading of the car by which the brake was rendered useless. If it did not mean that, we are at a loss to conceive what it did mean.

It is said, however, that when the motion to non-suit was first made at the end of the plaintiff’s evidence, there was no evidence in the case that the defendant had fulfilled its duty of providing for an inspection of the car, previous to its being taken away, and that hence there was no basis for that ground of exemption; and therefore it must be presumed that the motion was aimed as some other point, probably the one that the defendant was not responsible for the negligent loading of the car, because it was loaded by the employees of the owner of the lumber and not by those of the defendant. But if that be true it is not an answer to the motion when it was subsequently renewed. It only shows that at the time when the motion was first made, the defendant’s counsel, while contending that the defendant was not responsible for the negligent loading of the car, could at that time only base his motion upon the untenable ground that it was not responsible, because the •car was not loaded by its employees, while after the evidence on the part of the defendant was given, by which it appeared that the defendant had fulfilled its duty to its employees by providing a system and competent men for the inspection of the car after it was loaded, a renewal of the motion on the same ground that there was no evidence of any negligence on its part could be supported by the additional facts proved on the part of the defendant.

The ground was the same on each occasion, viz.: that the defendant was not responsible for the negligent loading of the car, but when the motion was renewed at the end of all the evidence, facts had, in the meantime, been proved which we think afforded ground for granting it.

If there should be made any question on a re-trial as to whether the company had, in fact, provided rules for an inspection of the cars, and proper men to inspect them, after they were loaded, and before they were taken away, such question would be proper to submit to the jury under correct instructions.

On the record, as it now stands, the plaintiff failed to show negligence on the part of the defendant in regard to the performance of its duties as master. The point discussed was sufficiently raised at the trial to be available here. We think the judgment should be reversed, and a new trial ordered, costs to abide event.

“ Earl, Finch and Gray, JJ., concur. Ruger, Ch. J., and Andrews, J., dissent. Danforth, J., dissents on the ground that when the car was furnished to the deceased, it was furnished as a loaded and not as an empty car, and at that moment the movement of the brake was obstructed and therefore the car was imperfect and unfit for use, and for its unfitness the defendant is, in my opinion, liable. Nor do I think the question was so raised by the exception as to be intelligible to the opposite party or the trial judge.”  