Wynn v. Central Park, North & East River R. R.

vent the accident from, the moment that the chain broke. Ho remained at his post on the front platform up to the time when he was within about four feet of the car in front of him and only .jumped off at the last moment, and when to have remained would have resulted in his own serious injury, without furnishing the least obstruction to the collision which was imminent and which happened within a second or two after he had jumped off. He had been driving cars for this defendant for a year or two prior to this time, and had been in its employ sometime prior to that period. The case is without evidence tending to show that he was not an entirely fit man for the position, and there is the same absence of any evidence tending to show that he did not use the necessary and proper degree of care and skill at all times on that trip and up to the time of the collision.

When, just prior to the breaking of the chain, he used the brake two or three times to check the speed of the car on account of the driver of the Weiss beer wagon getting on the track in front of him, he says he was entirely unconscious of using any more strength upon the brake than was pecessary for the purpose of accomplishing his object. He says it was not necessary, •and that he does not remember that he did. But even if he did use more force than was necessary, there was no want of skill in that, and if the chain was as strong as it was intended to be and ithe purpose of its use called for, there was no harm or injury to be apprehended from such use. It would be improper to submit the question of lack of skill or of negligence in the driver based upon evidence that he had used more force in handling the brake than was absolutely necessary to check the speed of the car.

At any rate there was no evidence that he did do so, and a jury should not be allowed to speculate or indulge in a mere guess upon such a matter. There must be at least some evi■dence upon which the question of a want of skill can be based, and here there was none.

The plaintiff argues that the driver should have shouted so that the employees upon the car ahead would have heard him and .started their car, and thus an accident would have been avoided. The occurrence itself was accompanied with great noise so as to naturally attract attention. The counsel himself alludes to the proof that there was so much noise from the runaway car as to cause a pedestrian some ways off to hear it and turn around to discover the reason. The case is bare of any evidence that shouting would have been of the least service in preventing the accident. It is also alleged that he should have turned his horses out at right angles with the rails, and thus have dragged.the car across and thrown it off the track. Had he done so and succeeded in overturning the car, considering the speed the car then had, it is quite likely that a worse accident would have occurred and that a charge of unskillfulness or negligence on the part of the driver would have had much to sustain it under such facts. These are, however, but the possible actions which the counsel for plaintiff thinks now might have been performed by the driver. 'There is no evidence to show that they would even probably

have been effectual. He was confronted with a sudden emergency, and we cannot now say that his notion was not the best, that could have been performed under the circumstances. Even a failure to exercise the best judgment which the case rendered possible cannot fairly be claimed as evidence of a lack of care or skill. We do not, however, see any evidence that in fact there-was such failure.

The defendant contends there was no evidence of negligence on the part of the defendant to be submitted to the jury.

There was a question made as to the sufficiency of the-inspection.

The happening of the accident of the nature proved in this case- and with regard to a passenger on ¿lie defendant’s car, was enough evidence of negligence to call upon defendant for some explanation. The witness who was called to prove the inspection left, the question in such condition as to its sufficiency, that it was-proper to submit it to the jury. The defendant proved by one of its witnesses, who had for many years been a chain manufacturer, that in the case of a wrought iron link it was not possible for the external appearance of the iron to be without flaw, and yet a flaw exist in the center; at least he never saw it in wrought iron and he had been in the business for thirty-eight years. As one of the-links of this wrought iron chain did in fact break upon this occasion, and was lost, and as the chain was comparatively* a new one, it might be inferred that it broke on account of some defect or flaw which would have been revealed upon a more minute inspection than seems to have been given. The inspector said he: did not on the morning in question examine the chain minutély, each particular link, but he looked the whole chain over and tested its strength by winding it up several times. Upon this evidence we think it was a fair question to be submitted to the: jury, whether in view of all the circumstances in which a car may be placed when running on its ordinary trips in the city, a more extended examination was called for or was indeed practicable in the-exercise of proper care and diligence, than was in fact given to the chain in this instance. We do not say the defendant was guilty of negligence in this regard, or that its inspection was insufficient, but we think the question whether it was or not should be submitted to the triers of fact.

Alleged error in regard to the submission of the question of the sufficiency of the brake appliance as regards plan and method is claimed by defendant. - The evidence seems to show there was no question for the jury on that subject. The brake appliance seems to have been of the same kind as that in general use in all horse railroad companies, and to have been entirely sufficient for its intended use as to plan and method. There is some doubt whether the court, in answer to defendant’s request to charge, did not cure any error that may have existed in the main charge to the jury.

Other errors are alleged as to the admission and rejection of evidence, which it is unnecessary to notice, as they may not arise upon a new trial

Forthe erroneous submission of the question as to the skill of -.the driver to the jury, the judgment must be reversed, and a new 'trial granted, costs to abide the event

All concur, except Gray, J., not voting.