Majority
Headnote
1. Master and Servant ('§ 129[1] )—Injuries to Servant—Negligence—Proximate Cause.The plaintiff, who brings this action to recover for personal injuries alleged to have been caused through the negligence of the defendant, was employed with others in painting the superstructure erected by the defendant in electrically equipping the New .York terminal of the New York, New Haven & Hartford Railroad Company at the Wakefield Junction on the 19th day of May, 1907. The construction used at this point consisted of steel cross-bridges at intervals of 300 feet, from which were suspended heavy cables, known as messenger wires, which were suspended so that there was a drop-of several feet in the center, and from these messenger wires the trolley feed wires were carried by arms at a practically uniform level The work in progress at the time of the accident was the painting of these messenger wires and the structure generally, and the method employed was to place a train of ordinary box cars under the structure
The plaintiff’s theory of the accident is that-the defendant was negligent in not providing a car with a platform high enough to enable the painter to do this work without the use of a ladder, and that it was also negligent to permit placing the ladders so that they would lean upon the wires. The plaintiff offered no evidence to show that the method employed by the defendant was not reasonably safe, unless this fact was to be assumed from the mere fact of the happening of the accident. It was in evidence that each of the end cars in the train used were supplied with platforms of a more or less permanent character which were high enough to enable the painters to perform their work at and near the bridges, and there is no evidence that any one-refused to permit the use of either or both of these cars at the point of the accident on the day in question. The defendant appears to have supplied platforms and ladders, and the employés seem to have been in the.habit of choosing their own appliances out of the interior of the cars and placing them upon the cars and using them as best suited their own ideas as to the requirements. There is some suggestion that these ladders were- taken from the car on the day of the accidefit under the directions of the defendant’s superintendent (the action being brought under the employer’s liability act' [Consol. Laws, c. 31, §§ 200-204]), but it does not appear that the alleged superintendent directed that1 the ladders should be used at the point of the accident, or that he made any suggestions in reference to the matter, except that, he called upon the crew generally to get out the appliances and to hurry'up with the work.
But assuming that there was some such direction, and that some ■degree of negligence might be spelled out, the defendant took upon ■itself "the obligation of explaining the accident, and its evidence stands (undisputed that the accident was the result, not- of any defect in the
The order and judgment appealed from should be affirmed, with--costs. All concur.