Gottlier v. New York, Lake Erie & Western Railroad

This action was brought to recover damages for personal injuries received by the plaintiff while in the discharge of his duties as a brakeman on a freight-train of the defendant. While trying to couple two cars he was crushed between them, sustaining serious injuries. Whether he was'chargeable with contributory negligence was clearly a question of fact for the jury, and the trial judge did not err in submitting it to them nor in his charge in reference thereto. The sole questions for our consideration are whether there was any evidence of the defendant’s negligence for submission to the jury, and whether there were any errors in the charge or refusals to charge of the trial" judge in reference thereto.

At the time of this accident the defendant’s road was so arranged that both broad and standard gouge cars could be run upon it in the same train, and there were both kinds of cars in the train upon which the plaintiff was acting as brakeman. The train broke in two in the night-time while under way, and the two cars which he was required to couple were of different gouge, and failing to make the coupling the draw-heads passed each other, and the bumpers not being wide enough to protect his person, he received the injuries complained of.

The evidence tends strongly to show that the main purpose of bumpers at the ends of freight cars is to protect brakemen while in the discharge of their duties between the cars, and that they should be sufficiently wide to protect the body of a

In this case the evidence tended strongly to show that the bumper on each of the two cars which the plaintiff was attempting to couple, was made of a strip of wood only three inches thick nailed onto the car, thus leaving, when the cars came together, a space of only six inches, wholly insufficient for the protection of the brakeman.

The defendant was under obligation to its employes to exercise reasonable care and diligence in furnishing them safe and suitable implements, cars and machinery for the discharge of their duties, and upon the assumption that the defendant was responsible for the condition of these cars as if they were owned by it, there can be but little doubt that the evidence was ample to show that it had failed in its duty to the plaintiff. The defect was an obvious one, easily discoverable by the most ordinary inspection, and it would seem to be the grossest negligence to put such cars into any train and especially into a train consisting of cars of different gouge. But these two cars did not belong to the defendant. They belonged to other companies and came to it loaded, and it was drawing them over its road to their destination. They were in good repair, and the defects were in their original construction, they being just as they were originally made. The defendant claims that it was bound to receive and transport these cars over its road, and was under no responsibility for any defects in their structure, and that the plaintiff, upon entering into its employment, assumed all risks from such defects.

It is not necessary in this case to lay down with precision

It will thus be seen that the utterances of judges as to the responsibility of one company for the defective cars of another company drawn over its road are not entirely harmonious, and yet we think all the authorities hold that the company drawing the cars of another company over its road owes, in reference to such cars, some duty to its employes. It is not bound to take such cars if they are known to be defective and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign ears just as it would inspect its own cars. It owes the duty of inspection as master, and is at least responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars; so much, at least, is due from it to its employes. The employes can no more be said to assume the risks of such defects in foreign cars than in cars belonging to the company. As to

The defect here complained of was obvious, easily discoverable by the most ordinary inspection, and it seems that it could have been easily remedied by simply hailing or fastening additional strips of wood to the ends of the cars,'so as to give the bumpers sufficient width to afford the protection needed and intended.

These rules of law were not violated by the trial judge in his charge when it is applied, to the facts of this case. He charged: “ In considering these questions you can lay out of view the fact that these cars did not belong to the company. I charge you that it was entirely immaterial whether this was a hired or borrowed car, or whether it belonged to the company or not. If the company placed it in operation and placed it before its employes for use, then they were held to liability if it was defective, arid if you shall find it to have been defective.” And upon the request of the defendant’s counsel he refused to charge, “If the ears between which the plaintiff was injured were those of another company than the defendant, it is not chargeable with negligence if they were improperly constructed or for any defects in their construction. The extent of the defendant’s duty was to see that they were in good repair while on its road.” While the charge, as made, may have been erroneous so far as it laid down a general rule, as applied to this case, where the defect complained of was plainly visible and easily discoverable by ordinary inspection without the application of any extraordinary or unusual tests, it was sufficiently accurate.

We have carefully considered the other points argued by the learned counsel for the defendant, but do not believe them to be well taken, and they require no particular attention here.

The judgment should be affirmed.

All concur.

Judgment affirmed.