EATON v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

Court of Appeals, New York, June, 1900.

BRAKEMAN INJURED BY DEFECTIVE APPLIANCE-CAR OF ANOTHER RAILROAD COMPANY-INSPECTION - DUTY OF RAILROAD COMPANY. — In an action to recover damages for injuries to a brakeman in defendant's employ, while attending to the brake of a freight car which belonged to another company, the rule that it is the duty of the master to furnish his servants with safe and suitable appliances and that this duty applies to a railroad company inspecting the cars of another company used upon its road just as it would inspect its own cars, was applied. BRAKEMAN AND CAR INSPECTORS - FELLOW-SERVANTS. — In such action it was held that a car inspector is not a fellow-servant of a brakeman, although a railroad rule required brakemen or trainmen at all stoppings of trains to inspect the brakes, etc.

APPEAL from Supreme Court, Appellate Division, Fourth Depart

ment.

Action by Edwin A. Eaton against the New York Central and Hudson River Railroad Company. From a judgment of the appellate division, Fourth Department (43 N. Y. Supp. 666), reversing a judgment for plaintiff, he appeals. Judgment reversed.

WILLIAM S. JENNEY, for appellant.

EDWARD HARRIS, for respondent.

CULLEN, J. This action was brought, servant against master, to recover damages for personal injuries. The plaintiff was an experienced brakeman in the defendant's employ, and at the time of the accident was in service on a freight train. While applying the brake, the attachment of the brake chain to the foot of the brake staff gave way, and the plaintiff was precipitated from the top of the car upon the track, where his legs were run over by the rear car of the train. The car on which the plaintiff attempted to set the brake was that of another company, which had been received for transportation at Buffalo. On an examination after the accident it appeared that the eyebolt, by which the chain had been attached to the foot of the brake staff, was broken. Evidence was given to the effect that the shank or pin of the eyebolt had been worn to such an extent that it was only half its original thickness; that this rendered the bolt liable to break, not only on account of the loss of metal, but because of the play which was given the pin in the hole in the brake shaft in which it was set. There was also evidence

given from which the jury might have found that a reasonable inspection of the pin and brake shaft at this point would have disclosed the weakness of the parts. The car was inspected at Buffalo by the defendant's inspectors but the condition of the eyebolt was not noticed. The jury rendered a verdict for the plaintiff upon which a motion for a new trial having been denied a judgment was subsequently entered. On appeal the judgment and order were reversed by the Appellate Division, but, as stated in the order of that court, "upon questions of law only, the court having examined the facts and found no error therein."

The learned Appellate Division in its discussion of the case assumed that the question whether the defect in the eyebolt was discoverable or not by reasonable inspection was one of fact for the jury. This assumption in our opinion was warranted by the evidence, the details of which it would not be profitable to recite. That it is the duty of the master to furnish his servants with safe and suitable appliances, so far as reasonable care will accomplish that result, may be now considered as an elementary rule of law, and this duty applies to cars received from other companies as well as to its own. "A railroad company is bound to inspect the cars of another company used upon its road, just as it would inspect its own cars. It owes this duty as master, and is responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. When cars come to it from another road which have defects visible or discernible by ordinary examination, it must either remedy such defects or refuse to take them." Goodrich v. Railroad Co, 116 N. Y. 398, 22 N. E. Rep. 397. See Gottlieb v. Railroad Co., 100 N. Y. 462, 3 N. E. Rep. 344, 5 L. R. A. 750; Railroad Co. v. Mackey, 157 U. S. 72, 15 Sup. Ct. Rep. 491, 39 L. Ed. 624. This doctrine was accepted by the learned court below, but it held that the defendant was exempted from liability because of the following rule prescribing the duty of its employees, to which plaintiff was deemed to have assented: "Rule 153. At all stoppings of trains the brakemen or trainmen must inspect the wheels, brakes, and trucks of the car, and report any defects immediately to the conductor." The court reasoned that under this rule the duty of an inspection was devolved. upon the trainmen equally with the car inspectors at Buffalo; that the inspectors were fellow-servants of the trainmen in the duty of inspection; that the negligence of the former in the discharge of their duty was negligence of fellow-servants; and that, if it was negligence on the part of the inspectors not to have discovered the defective character of the brake, similar omission on the part of the plaintiff or the trainmen constituted contributory negligence on the

plaintiff's part.

There can be no question that, apart from the rule quoted, inspectors are not fellow-servants of the trainmen, so as to relieve a railroad company from liability to the latter for injuries occasioned by the negligence of the former. The duty which the master, as such, owes to his employees, of exercising reasonable care that the appliances furnished them should be safe and suitable, cannot be delegated so as to relieve the master from responsibility; and, so far as it is performed by others, the negligence of any servant, agent, or employee in the work is deemed not the negligence of a fellow-servant, but that of the master himself. Fuller v. Jewett, 80 N. Y. 46; Bailey v. Railroad Co., 139 N. Y. 302, 34 N. E. Rep. 918. In the last case it is said: "The master is never exonerated by the negligent omission of subordinates to perform duties which are imposed upon him in his character as master, resulting in injury to other employees." Inspection to discover whether an appliance is defective is as much a part of the work of furnishing safe appliances as reparation after the defect is discovered, and in the Bailey case the negligence alleged was failure to inspect.

We may concede that the question whether a faulty act or omission complained of is negligence in the discharge of the duty of the master, as such, or is in a detail of the work, may depend on the manner in which the work is carried on. We may also assume, for the argument, that it was within the power of the defendant to have so conducted its business as to have made its trainmen both brakemen and car inspectors. But the question remains whether it did. so in this case, and whether such is the effec: and object of the rule promulgated. The question is not without interest to the defendant in other cases than that before us. If the same servant is to discharge the duties of separate positions, he must have the necessary qualification for each, to be a competent fellow-servant. brakeman is to act as car inspector, he must have the expert skill and knowledge which a jury might find was necessary to discharge the duties of the latter position, and the defendant might find itself very much circumscribed in its appointment of trainmen. We think it quite plain that the defendant never intended to blend, nor has blended, the two distinct positions of brakeman and inspector. It appears that, as a matter of fact, it has assumed to inspect cars at its terminus by servants especially designated for that purpose. The rule promulgated by the company must have a reasonable construction. It imposed on the trainmen the obligation of examination of the appliances which their services compelled them to use, both for their own protection and the protection of the property of the master and the persons of their fellow-servants. The examination,

however, was not necessarily to be that of an expert inspector, but such as the ordinary knowledge of brakemen, and the time allowed for the purpose consistent with their other duties, would enable them to make. We concur in what is said by Justice Hatch in Myers v. Railroad Co., 44 App. Div. 11, 60 N. Y. Supp. 422: "It is quite evident that the measure of obligation which is imposed. upon an employee of this character by virtue of this rule is much less strict than is imposed upon employees of the defendant charged with the specific duty of inspecting cars for the express purpose of discovering their condition, and the reason for such distinction is obvious. A brakeman has other duties and obligations resting upon him than that of inspection, and in many cases such duties almost wholly exclude any opportunity to examine the various appliances which he is required to use. Under such circumstances the rule, interpreted in the strict sense, would impose an obligation which the employee would have little or no opportunity to discharge. It must, therefore, be subject to a reasonable interpretation, measured in degree by the opportunity to examine and the character of the existing defect." Under this view, by reason of the difference between the duty of inspection, resting on the trainmen, and that imposed on the car inspectors, the two classes are not fellow-servants within the rule which exempts the master from liability. The question of the effect of similar rules arose in Pratt v. Railway Co., 63 Hun, 616, 18 N. Y. Supp. 682, affirmed without opinion in 136 N. Y. 654, 32 N. E. Rep. 1016; and O'Malley v. Railroad Co., 67 Hun, 130, 22 N. Y Supp. 48, affirmed without opinion in 142 N. Y. 665, 37 N. E. Rep. 57o, - in both of which cases recoveries for defective appliances were upheld. These decisions seem conclusive on the question before us, though we have treated it as an original one.

From the views already expressed it is apparent that a failure to discover defects which would constitute negligence in a car inspector might not necessarily establish contributory negligence on the plaintiff's part. The question was for the jury. There is this further to be said: Under the rule, the duty of inspecting the brakes on the train did not rest on the plaintiff alone, but on him and the other trainmen. The evidence tends to show that in the necessary division of duties between the several trainmen the inspection of the brake that proved defective did not fall upon the plaintiff. Assuming that there was negligence on the part of his fellow brakemen, such negligence would not be imputable to the plaintiff, or preclude a recovery by him. Cone v. Railroad Co., 81 N. Y. 206; Coppins 7. Railroad Co., 122 N. Y. 557, 25 N. E. Rep. 915. The judgment of the Appellate Division should be reversed, and the judgment

entered on the verdict of the jury at trial term should be affirmed, with costs.

BARTLETT, MARTIN, VANN, and WERNER, JJ., concur. PARKER, CH. J., not voting. GRAY, J., not sitting.

GIRVIN V. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

Supreme Court, New York, Appellate Division, Fourth Department, June, 1900.

EJECTING TRESPASSER FROM TRAIN - BRAKEMAN ASSAULTING PERSON AFTER EJECTING HIM-SCOPE OF AUTHORITY — LIABILITY OF MASTER. — In an action to recover damages for injuries to a boy, fourteen years of age, who was driven off one of defendant's trains by a brakeman who, after ejecting the boy, struck and kicked him, the question whether the brakeman was acting within the scope of his authority when he followed the boy from the car and jumped upon him, was for the jury to determine, and judgment of nonsuit was reversed (1). MCLENNAN and SPRING, JJ., dissented.

APPEAL from Trial Term, Onondaga County.

Action by William J. Girvin, an infant, by his guardian ad litem, against the New York Central and Hudson River Railroad Company. From judgment in favor of defendant, plaintiff appeals. Judgment reversed.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and LAUGHLIN, JJ.

WILLIAM NOTTINGHAM, for appellant.

FRANK HISCOCK, for respondent.

WILLIAMS, J. The action was brought to recover damages for injuries to the plaintiff alleged to have been caused by the negligence of the defendant. The plaintiff was a boy fourteen years of age. He was driven off one of the defendant's trains while in motion, by a brakeman in charge, and sustained a severe fracture of the right leg; confining him to the hospital for ten months, and

1. Master's liability for injury to third person from act of stranger — Lowering railroad gates. In HAINES v. ATLAN TIC CITY R. R. Co. (Supreme Court, New Jersey, June, 1900), 46 Atl. Rep. 595, it was held that a railroad com. pany is not liable for injuries to a per

son driving across track by the lowering of the gates at the crossing, where the same had previously been raised without knowledge or authority of the gateman, by a person not an employee of the railroad company.