95 546 116 402 Statement of case. a period extending before the offense with which he was charged, he had been engaged in the lottery business. The General Term seem to have thought that an assault committed upon other persons "would not necessarily or properly tend to impeach the moral character, or impair the credit of the witness." We held the exact contrary in People v. Casey. The questions there sustained were admissible upon that ground alone, and the case is decisive of this. The assault upon Weed, unexplained and unjustified, was a crime punishable by fine or imprisonment. It indicated disregard of the law, contempt for personal rights, and an ungovernable temper prompting to a criminal act. If we are ever to roam through our Penal Code in search of a crime capable of being committed without indicating a defective moral character, we shall not select the one here in question. Whether the pistol in the hands of the defendant was an instrument or thing likely to produce grievous bodily harm, was a question of fact for the jury. (Nelson v. People, 23 N. Y. 298; Abbott v. People, 86 id. 471.) Although the weapon was not produced, or otherwise described than by its common name, yet it was capable of being used otherwise than by firing, and such description by its name, in connection with the character of the wound inflicted, was sufficient to carry to the jury the question of fact. We discover no error in the record and the judgment should be affirmed. All concur, except RUGER, Ch. J., and RAPALLO, J., not voting. Judgment affirmed. 95 546 122 562 WILLIAM H. ELLIS, as Administrator, etc., Appellant, v. THE Where an injury to an employe of a railroad company is caused partly by Statement of case. to provide proper and suitable apparatus, the negligence of the co-servant will not exonerate the company from the consequences of its own default. In an action to recover damages for alleged negligence causing the death of E., plaintiff's intestate, it appeared that the deceased was a brakeman upon a freight train on defendant's road and was in the caboose car of the train, when, seeing that a collision was imminent between it and another train following, he stepped out of the front door of the car on to the platform of the next car. The cars were furnished with buffers, but they so overlapped each other that they were useless, and in consequence, when the trains collided, E. was caught between the ends of the two cars and killed. Held, that a dismissal of the complaint was error; that it was a duty the defendant owed its employes to provide cars with buffers appropriately placed. (Argued March 20, 1884; decided April 15, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 13, 1883, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial. The nature of the action and the material facts are stated in the opinion. John W. Lyon for appellant. A railroad company owes to its employes the duty of providing and maintaining safe and suitable structures, machinery and appliances, so as to protect them against danger. (Gottlieb v. N. Y., L. E. & W. R. R. Co., 29 Hun, 637–641; Flike v. Boston & Albany R. R. Co., 53 N. Y. 549; Laning v. N. Y. C. R. R. Co., 49 id. 521; Connelly v. Pollion, 41 Barb. 366, 369; 41 N. Y. 619; Plank v. N. Y. C. R. R. Co., 60 id. 607; Mehan v. Syr., B. & N. Y. R. R. Co., 73 id. 585; Booth v. Boston & Albany R. R. Co., id. 38-40; Corcoran v. Holbrook, 69 id. 517-520; Ryan v. Fowler, 24 id. 410-414; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 id. 240; Fay v. Minn. & St. L. R. R. Co., 15 Northw. Rep. 211; Muldowney's Adm'rs v. Ill. Cent. R. R. Co., 36 Iowa, 462-473; Alden v. N. Y. C. R. R. Co., 26 N. Y. 102; Kain v. Smith, 80 id. 458; Cone v. Del., L. & W. R. R. Co., 81 id. 458; Fuller v. Jewett, 80 id. 46; Hough Statement of case. v. Railway Co., 100 U. S. [10 Otto] 213; 21 Alb. L. J. 129; Painton v. Northern C. R. Co., 83 N. Y. 7; Braun v. Chicago, R. 1. & P. R. R. Co., 22 Alb. L. J. 117; Chicago & N. W. R. R. Co. v. Jackson, 55 Ill. 492; 8 Am. Rep. 66; Shanny v. Androscoggin Mills, 66 Me. 420; Gibson v. Pacific R. R. Co., 46 Mo. 163; 2 Am. Rep. 497; Cumberland, etc., Co. v. State, 44 Md, 283; Wedgwood v. C. & N. R. R. Co., 44 Wis.; 18 Alb. L. J. 137.) The deceased had the right to understand and assume that the defendant had exercised care in that respect, so as not to expose him to unreasonable risks or dangers. (Connelly v. Pollion, 41 Barb. 366–369; 41 N. Y. 619; Noyes v. Smith, 28 Vt. 59; 24 N. Y. 414 ; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458, 461; Ford v. Fitchburg R. R. Co., 110 Mass. 240; 14 Am. Rep. 605, 606; Gibson v. Pacific R. R. Co., 2 id. 500; 46 Mo. 16; Fort Wayne, etc., R. R. Co. v. Gildersleeve, 33 Mich. 133; Toledo, etc., R. R. Co. v. Ingraham, 77 Ill. 309.) The question as to whether the buffers furnished deceased were safe and proper appliances should have been submitted to the jury for it to pass upon, and it was error to take such question from the jury. (Muldowney's Adm'rs v. Ill. Cent. R. R. Co., 36 Iowa, 462-473.) It was defendant's duty to supply and maintain buffers in safe and proper condition. (Gottlieb v. N. Y., L. E. & W. R. R. Co., 29 Hun, 637, 641; Fay v. Minn. & St. L. R. Co., 15 Northw. Rep. 241; King v. Ohio, etc., R. Co., 14 Fed. Rep. 277; Grand Trunk R'y Co. v. Cumming, 27 Alb. L. J. 294.) It was error to grant the motion for a nonsuit on the theory of the neglect of a fellow-servant of deceased. (Fuller v. (Fuller v. Jewett, 80 N. Y. 52; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 id. 240; Kain v. Smith, 80 id. 458; Braun v. Chicago, R. I. & P. R. R. Co., 22 Alb. L. J. 117; King v. O. & W. R'y Co., 27 id. 176; Hough v. Texas & P. R'y Co., 21 id. 129; Ford v. Fitchburg R. R. Co., 110 Mass. 240; Painton v. Northern C. R. R. Co., 83 N. Y. 7.) Where a master furnishes defective machinery for use in the prosecution of his business, he is not excused by the negligence of a servant in using the machinery, Statement of case. from liability to a co-servant for an injury which could not have happened had the machinery been suitable for the use to which it was applied. (Cone v. Del., L. & W. R. R. Co., 81 N. Y. 206, 209; Grand Trunk R. R. Co. v. Cummings, 27 Deceased was at his place of duty, and in a moment of danger and under impulse of great fear attempted to save his life, which constitutes no negligence upon his part. (36 Iowa, 372; 47 id. 688.) Alb. L. J. 294.) Lewis E. Carr for respondent. The presumption always is, that the master has performed his duty to the servant. That presumption exists in every case, although the injury to the servant may have been occasioned by the failure of some of the instrumentalities of the master's business. (Wood's Master and Servant, 744, §§ 346, 368, 382.) The burden of proof rests upon the servant or on the one suing for causing the servant's death, to establish the fact that the injury or death resulted from the fault of the master. (Allen v. New. Gas Co., 17 Eng. Rep., Moak's Notes, 420; Wood's Master and Servant, §§ 344, 346, 368, 382; 2 Thompson on Negligence, 1053; Cotton v. Wood, 8 C. B. [N. S.] 568; 1 Thompson on Negligence, 364.) The measure of the master's duty is the care of a person of ordinary prudence in the management of his own. concerns. (Slater v. Jewett, 85 N. Y. 61, 67; Degraff v. R. R. Co., 76 id. 125; Leonard v. Collins, 70 id. 90, 93; Northcoate v. Batcheler, 111 Mass. 327; Murray v. R. R. Co., 36 Am. Dec. 268, 284 note; Locke v. Sioux City R. R. Co., 16 Am. Rep. 138; Ballou v. R. R. Co., 5 Am. & Eng. R. R. Cas. 480.) The master is not bound to make use of the latest improvements in machinery, or to discard appliances that are old-fashioned. (Wonder v. R. R. Co., 3 Am. Rep. 143, 144, 146; Degraff v. R. R. Co., 76 N. Y. 125; affirming, 3 Thompson & Cook, 255; see pages 256, 257 of the lastmentioned report; Smithson v. R. R. Co., 1 Am. & Eng. R. R. Cas. 101, 104, 107 and note; Ft. W., etc., R. R. Co. v. Gildersleeve, 33 Mich. 133; Ind., etc., R. R. Co. v. Flannagan, 77 Ill. 365; Toledo, etc., R. R. Co. v. Asbury, 84 id. 429; Id. Statement of case. v. Black, 88 id. 412; Salters v. D. & H. Canal Co., 3 Hun, 338; Henry v. B. R. Co., 81 N. Y. 373; Ladd v. R. R. Co., 119 Mass. 412.) The injury having resulted from an unforeseen and violent cause the master is not liable. (Stringham v. Stewart, 27 Hun, 562; Wood's Master and Servant, § 371; Summerselle v. Fish, 117 Mass. 312; Harvey v. R. R. Co., 88 N. Y. 481.) The master is not bound to anticipate that his servants may at times be careless and to provide appliances which shall be strong enough to withstand the effect of such carelessness. (Slater v. Jewett, 85 N. Y. 61, 73; Salters' Case, 3 Hun, 338, 340; Chapman v. R. R. Co., 55 N. Y. 579, 586; Stringham's Case, 27 Hun, 562.) The master is not chargeable with negligence, because the cars were not of even height, as he has the right to conduct his business in his own way, and is not restricted to any particular kind or shape of machinery. (Fort Wayne., etc., Railroad Co. v. Gildersleeve, 33 Mich. 133; Toledo, etc., R. R. Co. v. Black, 88 Ill. 112; Muldowney v. R. R. Co., 39 Iowa, 615; Hulett v. R. R. Co., 67 Mo. 239; Smith v. Potter, 2 Am. & Eng. R. R. Cas. 140.) If, however, it should be held that having two cars together in the train, the blocks of which did not match evenly, is negligence, the claim fails because the negligence which brought them together was that of a fellow-servant. (Murray v. R. R. Co., 36 Am. Dec. 268; Farwell v. R. R. Co., 4 Metc. 49; Wright v. R. R. Co., 25 N. Y. 562; Crispin v. Babbitt, 81 id. 516, 520; Fuller v. Jewett, 80 id. 46, 52; Booth v. R. R. Co., 73 id. 38; Flike v. R. R. Co., 53 id. 549, 553; Laning v. R. R. Co., 49 id. 521, 532, 533; McCosker v. R. R. Co., 84 id. 77, 81, 82; Ilofnagle v. R. R. Co., 55 id. 608; Slater v. Jewett, 85 id. 61, 74; Rose v. R. R. Co., 58 id. 217, 221; Albro v. Canal Co., 6 Cush. 75; Marvin v. Muller, 25 Hun, 163; Beilfus v. R. R. Co., 29 id 556.) The arrangement of cars in a train to run over the road is one of the matters of executive detail which must of necessity be intrusted to the servants for performance. (Rose v. R. R. Co., 58 N. Y. 217; Slater v. Jewett, supra; Hodgkins v. R. R. Co., 119 Mass. 419; McCosker v. R. R. Co., supra; Besel v. R. R. Co., 70 |