Majority
Judgment and order reversed and a new trial ordered, -with costs to abide the event.—
Per Curiam : Under the ruling in Bailey v. Borne, W. & O. R. R. Co. ( 139 N. Y. 302 ) the duty rested upon the defendant to cause a proper inspection of the cars before they left Oswego. There was evidence tending to show that the appliances for coupling were defective; that there was an improper play of the drawhead of from one to three inches. Whether this contributed to the injury, and whether it existed when the train left Oswego and might by proper inspection have been discovered and remedied, were questions of fact for the jury. So was the question of contributory negligence. (See Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y. 398 , 404; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546 .) We think the case should have been submitted to the jury. Judgment and order reversed and new trial ordered, costs to abide the event.
Present — Hardin, P. J., Martin and Merwin, JJ.
Cases cited
- Bailey v. Rome, Watertown & Ogdensburg Railroad 139 N. Y. 302 p. 601
- Goodrich v. New York Central & Hudson River Railroad 116 N. Y. 398 at 404 p. 601