p. 197negligently attached or fastened to the limbs of growing trees on either side of said railroad track, in a careless and negligent manner, so much so that when the wind blew, or the said trees or limbs were otherwise caused to move or sway, that said wire was liable to become loosened from said limbs or said trees, or the brackets on -which they were attached were liable to become loosened from said limbs, so that the wire could drop down for some distance, and so low that it would become a dangerous obstruction to brakemen standing on freight trains passing under said wire.” It is alleged that the defendant “had due and sufficient notice that it was suspended over said railroad track, and that it was suspended in a careless and negligent manner, and in a manner which would cause it to become a dangerous obstruction to its employes and brakemen standing on the tops of trains passing under said wire.”1
The defendant, in its answer, admits that it is a domestic railroad corporation engaged as lessee and operating the West Shore Railroad, extending easterly and westerly through the village of Canajoharie; and that the plaintiff was in the employ of the defendant as freight brakeman on the 29th day of July, 1894. At the close of the plaintiff’s evidence the defendant moved for a nonsuit on the grounds; 1 “(1) That there has been no negligence proven in this case on the part of the defendant; (2) that the falling of the wire ' as described by the witnesses was without the fault of the defendant, and the defendant is not chargeable for any injury which may have resulted therefrom.” The motion was denied, and an exception was taken. At the close of the whole evidence the motion was renewed on the grounds already stated, and on the further ground that “there is no proof of any negligence, or of that negligence in this case on the part of the defendant which makes the defendant liable to the plaintiff for the injury on this occasion. The motion was denied and an exception was taken. The court was requested to charge: “If this wire was erected without the affirmative knowledge and consent of the defendant, and did not appear dangerous to ordinary inspection, then the defendant is not liable." There was a refusal and an exception. The defendant appeals from the order and from the judgment entered upon the verdict.
Frank Hiscock, for appellant.
M. E. Driscoll, for respondent.
Ten Eyck was in the livery business at the time of the accident, having a stable on the north side of the railroad track, and plaintiff received the injuries
p. 198complained of about 3 o’clock on the afternoon of -Sunday, July 29th. They were caused by the wire, which had sagged so that when he was passing under, it it came in contact with his body and carried him from the car on which he was standing to the one next in- the rear thereof causing the injuries of which he complains. The wire had fallen in consequence of a storm that had recently, within the space of about an hour, taken place, the fastenings of one end thereof having been detached from the tree; and from the fact that the smoke-stack of the engine had passed along and did not come in contact with the wipe, it is inferable that it had sagged after the engine had passed, and before that part of the train came under the wire on which the defendant was standing. The wire was placed up some 30 feet above the track at the instigation of Ten Eyck, Avho employed Nott and Smith to do the AATork of stringing the wire. There is no evidence in the case to indicate that the defendant ever gaAre any consent that the Avire should cross over its property, or the property of Avhich it was lessee. There is no eAridence to indicate that the defendant had any interest in the wire, or the use thereof, or took any part by- itself or any of its_agents in stringing the wire across its roadbed. Neither of the trees upon which the Avire Avas strung stood upon the land of the defendant or lessee. The train consisted of about 60 cars, and Avas passing around a curve, and the plaintiff seems to haAre stood looking towards1 the rear of the train at the time when he was caught by the wire, and did not see or know of its presence until his body came in contact Avith it. Ten Eyck’s liA'ery stable Avas on the north side of the tracks, and the hotel to Avhich the Avire was strung Avas on the south side of the tracks. The Avire Avas attached to the cornice of a shed, and then to the limbs of an elm tree north of the track, about 30 feet high, then to the limb of an elm tree diagonally across the tracks, about 30 feet high, from which it continued to the hotel; and the trees were about 135 feet apart. Apparently the Avind which occurred just before the accident caused the bracket on the north tree to which the wire Avas attached to- become loosened from the tree, so that the Avire sagged down Brackets were,nailed on the limbs of the elm trees several feet from the trunks of the trees upon the limbs that were three or four inches in diameter. Insulators Avere fastened on the brackets and the Avire passing thereto in such a manner that there Avas no reasonable room for play AA'hen the branches SAyayed.
The wire was broken at the time of- the accident and the bracket on the north side remained attached to the wire. There Avas no eAridence given upon Avhich the defendant could
p. 199be charged, with any act or transaction in connection with placing the wire across its property. We think the evidence was insufficient to charge the defendant with notice or knowledge that the wire was insecurely placed, and that it was attached in an improper manner, or that it was left in a dangerous condition after the employes of Ten Eyck had placed the same there by the direction of Ten Eyck. In Wright v. Railroad Co., 25 N. Y. 566 , Allen J., said:
If the injury arises from defect or insufficiency in the ma- ■ chinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same, through his own negligence and want of proper care; in other words, it must be shown that he either knew or ought to have known the defects which caused the injury. Personal negligence is the gist of the action.”
That doctrine was approved in Warner v. Railway Co., 39 N. Y. 478 . The duty of the defendant in furnishing a reasonably safe place for the discharge of the duties of the employe ■was to exercise ordinary prudence,—such prudence as a man of ordinary care and caution would exercise in the same line of business acting with regard to his own safety, were, he to occupy the place himself. Carlson v. Bridge Co., 132 N. Y. 273 ; 43 St. Rep. 942 . Apparently the wire had been placed in position by a competent and skillful person, and the evidence does not disclose that anything had occurred which was calculated to give notice or knowledge to the defendant of any unsafely in the condition of the wire. See Birmingham v. Railroad Co., 137 N. Y. 13 ; 49 St. Rep. 898 .
Respondent calls our attention to Vosburg v. Railroad Co., 94 N. Y. 374 , and Ave find, on examination of the case, that it differs A7ery essentially from the one before us. In that case the bridge, at the time of the purchase thereof by the defendant, Avas unsafe and dangerous by reason of defects in its orginal build and construction, “and such defects Avere obvious to the eye of a skilled inspector, and could have been easily and surely ascertained by proper examination.” Respondent also calls our attention to Donnegan v. Erhardt, 139 N. Y. 468 ; 29 St. Rep. 589 . Upon an inspection of that case avc find that the defendant is required to exercise reason' able prudence and care in keeping the track free from obstructions, animate and inanimate; and the particular fact, disclosed in that case to charge the defendant with negligence related to its omission to comply with the statute, Avliich requires eArery railroad company to build and maintain fences on the sides of its road. We think there Avas not sufficient eA7idence of any neglect of duty on the part of the defendant in respect to the Avire in question to Avarrant the court in demting the motion for a new trial.
p. 200Judgment and order reversed, and a new trial ordered,, with costs to abide the event.
All concur.