Butler v. New York & Q. C. Railroad — 58 N.Y.S. 1061

Majority

p. 1061

BUTLER v. NEW YORK & Q. C. R. CO.

(Supreme Court, Appellate Division, Second Department.

July 1, 1899.)

Headnote

1. Injury to Employe—Contributory Negligence.

An employé of an electric railway company, who, while accompanying a flat car a short distance in the discharge of his duty, rides thereon instead of on the motor car, which is designed for the accommodation of passengers, cannot, as a matter of law, he said to be guilty of contributory negligenee, if injured while so doing.

3. Same.

Nor can he be said to have been guilty of contributory negligence, as a matter of law, for sitting on a corner of the car, so that one of his legs was between the flat car and the motor.

8. Same—Obligation of Master.

It is the duty of the master to exercise reasonable care in furnishing safe and suitable appliances for the servant to work with, and the servant has a right to rely on the discharge of this duty.

4. Same—Notice of Defect—Character Thereof:

In an action to recover for personal injuries, evidence that an accident was due to the sudden falling off of the brake shoes of a car shows such

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a defect as would authorize the jury in finding that the defendant, in the exercise of reasonable care, should have had notice thereof.

5. Same.

In an action by an employe to recover for personal injuries, evidence that an accident was due to the sudden falling oft of the brake shoes of a car shows a defect of which he, being temporarily engaged with the car, could not reasonably be supposed to have notice.

Appeal from trial term, Queens county.

Action for personal injuries by Patrick Butler against New York & Queens County Railroad Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Francis Farquhar, for appellant.

William G. Beecher (Robert Goeller, on the brief), for respondent.

The plaintiff in this case was injured, as he claims, by reason of a defective appliance which was furnished him by the defendant, and used in and about the performance of the duties which he was directed to perform. When the car was loaded with the ties, it appears that he, together with the persons employed in and about the same occupation, were given tickets to ride in the passenger car to which the loaded car was attached. The passenger car was equipped with motive power, and pushed the loaded car to the point of destination. It is undoubtedly true that during that trip, from the place where the loaded car was received to the point where the ties were unloaded, the plaintiff was bound to ride in the passenger car, and did so. After the car was unloaded, it appears that, in order to remove it from the main track, so that the passenger traffic might proceed unimpeded, it became necessary to push this car a short distance to a switch, upon which the same might be shunted. The passenger car was coupled to this flat car for the purpose of pushing it to the switch, and the plaintiff, in the discharge of his duties, was required to accompany the car. The jury were authorized- to find from the testimony that the plaintiff was not furnished with a ticket to ride in the passenger car to the switch. It was comparatively a short distance, and, as the duty devolved upon him required that he should go, we think he may not be charged with contributory negligence, as matter of law, in riding upon the flat car. Nor do we think he is chargeable with contributory negligence, as matter of law, by reason of his taking the position thereon which he did. If the cars were in good order, the position which he occupied was not so palpably dangerous as that we can say it was negligence upon his part to occupy it. We think this question, in view of the distance the car was to go, and the circumstances of the case, was a question for the jury, and their finding is conclusive thereof.

It was the duty of the defendant to exercise reasonable care in furnishing a safe and suitable car for the purposes for which it was to be used, and upon the discharge of this duty by the defendant the plaintiff had the right to rely. The evidence warranted the jury in finding that the car was defective, and was so known to the defend

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ant, or, in the exercise of reasonable care, might have been known. It appeared that some time prior to the accident the superintendent had been notified—at least the jury were authorized so to find—-that the car was out of repair; and, when the foreman sent the plaintiff to obtain this car, the latter was directed to select the best one. The accident happened by reason of the sudden falling of the brake shoes from the car. This was evidently a defect of which the plaintiff could not reasonably be supposed to have 'had notice, and it was also a defect from which the jury were authorized to find that the defendant, in the exercise of reasonable care, should have had knowledge. The question, therefore, of whether the defendant had discharged its obligation in furnishing a safe and suitable car became one of fact for the jury, and their finding establishes the negligence of the defendant in this regard, and furnishes a safe basis for supporting the recovery which has been had.

It follows that the judgment should be affirmed.