
    Mahlon A. Chaffee, Respondent, v. The Erie Railroad Company, Appellant.
    Fourth Department,
    July 12, 1910.
    Railroad—negligence — injury to fireman while alighting from locomotive— failure to provide grabiron — charge permitting reeovéry for negligence not proven.
    Where a locomotive fireman, while descending from his engine to uncouple it from a train, and while' holding a grabiron with his right hand, was thrown from the engine when it suddenly started without warning, owing to the fact • that the defendant maintained no grabiron within reach of his left hand, the jury may find the defendant negligent.
    Although the defendant could he held liable owing to the absence of such grab-iron, a new trial will be granted where the charge of the court allowed the jury to predicate negligence solely upon the additional ground that the defendant had not furnished proper steps for use in descending from the engine, where the steps provided had been used without accident for many years; and there is no proof that they were defective.
    Appeal by the defendant, The Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of ’the clerk of the county of Steuben on the 24th day of January, T910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 23d day of February, 1910, denying the defendant’s motion for "a new trial made upon the minutes.
    
      F. A. Robbins, for the appellant.
    
      Herbert A. Heminway, for the respondent.
   Robson, J.:

Plaintiff has been awarded in this action damages for personal injuries suffered by him shortly after midnight on June 26, 1909, he being then a fireman on one of defendant’s locomotives. On attempting to alight from his locomotive he fell, and a wheel of the rear truck of the tender crushed one of his legs. The case was submitted for the jury’s decision as the ordinary common-law action in negligence, '

From the evidence the jury could have found that the train, of which the locomotive in question was a part, had stopped at a place where, in the ordinary operation of the train, the locomotive was to be and was in fact uncoupled from the train; that a part of his work as fireman could be done only while - standing on the ground and at the side of the locomotive; that this was a proper time and place to do this work; that then intending to do this work he started to alight from the left side of the locomotive in the usual way, stepping backward- from the end of the narrow gangway or opening between the locomotive proper and the tender to the step attached below; that he had placed his foot on the step, and while grasping with his right hand a long rod or grabiron fixed perpendicularly at the corner of the tender, above and slightly back of the steps, and intended to serve the purpose for which plaintiff then used it, and steadying himself by placing his left hand on a board or plank, bolted to the outside corner of the locomotive proper, at that instant the locomotive was without warning suddenly and violently started forward,- so that he was thrown around'against the tender; that as this occurred he reached out with his left hand for a handhold or grabiron, an appliance which should have been fixed within reach of his hand at the corner of the locomotive proper; that there was no grabiron there and nothing serving or designated to serve its purpose, a fact of which he was excusably ignorant; that being unable to retain his hold on the grabiron with his right hand, he fell and was injured as already described.

Our examination of the evidence leads to the conclusion that defendant’s failure to supply some suitable grabiron, or handhold, fixed on or near the corner of the locomotive, within reach of a person using the steps in getting off or on the locomotive would, if found by the jury as a fact, present a fair question for the jury to pass upon whether this omission was negligence of the defendant to which this accident was due, and without which it would not have happened. This question was properly and clearly submitted to the jury; and, except for the fact that they were also permitted, erroneously as we conceive, to consider another fact as a separate ground upon which they might find defendant’s negligence established, we should not disturb the result of the verdict.

One assignment of negligence of defendant found in the complaint was that the steps to which we have referred were “defectively, unsafely, and unsuitably constructed.” The learned trial court, in submitting to the jury the question whether defendant had performed its duty as master to furnish plaintiff a reasonably safe locomotive to work upon, said: “ Now upon that question, gentlemen, whether or not these steps were proper is for you to say. You have heard the evidence here that upon the New York Central and upon the Pennsylvania and the Lehigh Valley and Lackawanna they furnish box steps; but that it has for many years been the custom of the Erie to furnish these stirrup steps for the engines and there has never been a' previous accident.”

The effect of this charge taken in' connection with the statements preceding it, and the court’s disposition of defendant’s requests to charge, was clearly an instruction of the jury that negligence of defendant might be predicated solely upon a determination that defendant had not supplied this locomotive with proper steps. The steps in question are of a kind designated in the testimony» as ladder, stirrup, or skeleton-strap steps. Such steps are made of flat, or strap, iron, an inch and a half, or inch and three-quarters, wide. They are attached to the corner of the frame of the tender and extend vertically downwards. The sides and lower step are formed of one piece of iron bent in stirrup shape, the step at right angles with the sides. The' upper step, made of similar iron, is fixed to the sides, above and parallel with the lower step. The two steps are placed relatively like the rungs of a ladder. There was no defect in the steps themselves, if it was reasonably safe, to use steps so constructed. They Were of a type for many years in ' general use by defendant on its locomotives, and it appears, as the court instructed the jury, that no accident had ever theretofore resulted from their use. The steps in question were strong and were "securely attached in the proper position. It appears that a' different kind of steps is used on other railroads, known as box steps. These have a "back and treads of wood. But it doe's not appear that experience has demonstrated that they.are safer or more practical in actual use than the stirrup step. The ladder step is not obviously dangerous for the use designed; for defendant’s long and continued use of steps of similar construction had demonstrated that it was adequate, safe and convenient. Under such circunistances defendant, could not justly be charged with negligence because it continued to use them. (Bennett v. Long Island R. R. Co., 163 N. Y. 1, 5 ; Sweeney v. Berlin & Jones Envelope Co., 101 id. 520.) Neither does plaintiff’s account of the accident disclose that his fall from the locomotive was due in any way to the fact that the steps were of the ladder and not the box type. He had, as he says, in the act of descending placed at least one foot apparently securely on the steps before the sudden starting of the engine which made him lose his balance on the step. How his foot left the step, or what directly caused it to leave it, he is unable to say. He does not say that it slipped on the tread of the step on which lie had placed it, or between the steps themselves. It does not appear that a back to the steps would have afforded him further protection; for, at most, that would have prevented his foot from slipping forward through the steps. There was no charge that the steps themselves were so smooth that they were slippery and dangerous for that reason. It is not apparent that a wooden step, even with a somewhat wider tread, would, in plaintiff’s emergency, have proved an added factor of safety.

If plaintiff’s version as to how the accident occurred is to be accepted as true, we are brought back to the fact that it was due, not to any defect in the .steps, but, if in any way attributable to defendant’s negligence, it was solely because there was no handhold or grabiron on the engine within his reach when he lost ■ his balance on the step by the sudden starting of the engine.

Respondent’s counsel ingeniously suggests that the submission, as bearing upon defendant’s negligence, of the question whether the steps were proper and reasonably safe for the use for which they were intended, may be sustained, because they were intended for use in connection with grabirons or handholds at each side, and that 'with the grabirons they formed the means or combination supplied by defendant for getting on and off the locomotive. But it does not seem that was the effect of the charge, or that the jury could have so understood it. Confessedly a proper and safe grab-iron was on the tank. It would not be seriously urged that it would not be error to submit to the jury, as a separate ground upon which they might find defendant guilty of negligence, the question whether that grabiron was a safe and proper one, because they might find it was part of a combination, faulty in some other particular.

We are unable to say that the jury under the charge of the court may not have found defendant negligent because the step was unsafe, and that the plaintiff would not have slipped or fallen if some other kind of step had been supplied. The verdict was a gen- ' eral one, and the jury having been erroneously permitted to predicate their verdict solely upon the ground that the step was defective, and the verdict not being otherwise so clearly. supported that a direction thereof by the court could be upheld, reversal of the judgment and order necessarily follows. (Baldwin v. Burrows, 47 N. Y. 199.)

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  