
    (69 Hun, 93.)
    KNOX v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    Injury to Railroad Employe—Negligence.
    Oars free from defects were loaded with lumber in the usual manner,, and hauled more than 100 miles. They were also inspected at certain points. Afterwards, just as a train was passing on an adjoining track, a piece of timber, placed crosswise on one of the cars, worked loose, and! was forced into the caboose, injuring a brakeman therein. Held not such an accident as could have been anticipated, and which therefore could be charged to the railroad company’s negligence.
    Appeal from circuit court, Orange county.
    Action by Augustus Knox against the New York, Lake Erie & Western Bailroad Company. Judgment dismissing the complaint. Plaintiff appeals.
    Affirmed.
    Argued before BABNABD, P. J., and DYKMAN and PBATT, JJ.
    O. P. Howell, for appellant.
    Lewis E. Carr, for respondent.
   DYKMAN, J.

This is an appeal from a judgment dismissing the complaint of the plaintiff at the close of the testimony on Ms part upon the trial. The action is for the recovery of damages for personal injuries. The plaintiff was in, the service of the defendant as a brakeman and oilman. On the day of the accident he was upon a freight train going west, in his regular service. He was in the caboose, at the rear of the train, and, between Otisville and Howels, his train met a freight train eastward bound, and on the-left of Ms train. These trains met on a curve to the right going-west, and to the left going east. The cars in the train going east were loaded, and among them were two cars loaded with lumber and timber of different lengths. The short lumber was loaded on each car, and on the top were long timbers, longer than either car, and! they extended from one car to the other, resting partly upon both. Upon the top of the short timber on each car a piece of timber called a “bolster” was laid crosswise of the car. The office of the bolsters was to enable the long timbers to yield to the motion of the two cars without disarranging the timber below, as they rounded the curves of the railroad. Upon each side of the two cars there were three or four stakes set in pockets, extending above the top of the lumber, and across each car, above the lumber, there were two or more stay boards, nailed to the stakes on each side. These lumber cars were loaded at Lanesborough, and came west, over the Delaware division of the railroad, over a hundred miles. They were examined at Port Jervis by .the conductor, and found to be in good order, and the lumber and timber continued in its place until the trains met, when, about 10 cars’ length from the caboose in which the plaintiff was riding, the bolster on the forward car of the two worked out, struck the caboose, broke three of the stakes on the forward car, and broke the stay boards from their fastenings, and was forced into the caboose, struck the plaintiff, and inflicted the injuries for which he sues.

It is to be observed at the outset that there is no1, proof of defects, imperfection, or insufficiency in these lumber cars, or any of their appendages, or of a failure on the part of the company to provide a proper system and competent men for the inspection of the cars after they were loaded, and there is no point made by the appellant on this appeal respecting the absence of such system or such men. It does appear, however, that these lumber cars were inspected at Port Jervis. There was proof that the cars were properly loaded, and in the usual manner, although one witness said he thought there were too many cross pieces, and that they were too long for the cars, and liable to work out. Such an opinion was insufficient to sustain.a verdict for the plaintiff. The case therefore stands thus: The cars were safe, and free from defects and imperfections. There was no proof of failure to provide a suitable system of inspection and competent agents to make the same. Presumptions of negligence cannot be indulged to impose liability. It must be established by competent evidence, produced by the plaintiff in all actions of this character. The failure to detect the error in loading the cars, if there was any, and the failure to rectify the mistake, was the negligence of a fellow servant, and not" the fault of the defendant. Our examination has failed to detect any negligence on the part of any one. The cars were in good order, the timber was properly loaded, and rode morel than 100 miles in safety. It was inspected at Port Jervis, and found to be secure and unmoved, and remained so until within a few rods of the accident, when one of the bolsters worked loose, while the train was rounding a curve. The device of a bolster to afford play room for the long timbers as the cars went round the curves on the road was evidently a practical idea, and all the witnesses say it was usual and proper. The injury to the plaintiff was therefore the result of an accident, which could not have been anticipated, and cannot be charged to negligence. The judgment should therefore be affirmed, with costs. All concur.  