Ernest Newton, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

Ernest Newton, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Negligence—duty of d railroad to furnish suitable machinery and keep it in repair — it involves inspection —a, brakeman required by the rules of the company to inspect the trains is not a fellow-servant with the car inspectors. The duty of a railroad company to use reasonable care to protect its employees from injury while engaged upon its trains embraces the obligation to use reasonable care in furnishing suitable machinery in the first instance, and to keep it in repair so that their lives may not be exposed to unnecessary peril. The duty of proper inspection for the purpose of discovering defects which may arise from use is a part of the duty owing by the company to its. servants. Reasonable care involves proper inspection, and negligence in respect to it is the negligence of the master, and none the less so when the inspection is committed to a servant. ' * 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. Where a railroad company has assumed to inspect cars at a terminus of a division of its road by servants especially designated for that purpose, a rule of the company requiring brakemen to “ look over the train carefully before starting and know that all couplings, brakes and running .gear are in good order, (and to)' inspect the train as often as possible during the trip,” does not impose the duty of inspection upon the brakemen equally with the car inspectors and constitute them fellow-servants within the rule exempting the master from liability for the negligence of the coservant. A failure to discover defects which might constitute.negligence in a car inspector does not necessarily establish contributory negligence on the part of a brakeman, but the question is one for the jury. When, in an action brought by a brakeman, employed on one of the defendants freight trains, to recover damages for personal injuries sustained by him iri consequence of the breaking of the air hose on one of the cars composing the-train on which he was, causing the train to come to a standstill, in which condition it was run into by a train following it, the evidence is sufficient to sustain a verdict in favor of the plaintiff, considered; Houghton, J., dissented. Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 17th day of February, 1903, upon the verdict of a jury for $2,775, and also from an order entered in said clerk’s office on the 9th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes; The plaintiff, a brakeman in the employ of the defendant, was' injured on the 8th day of May, 1900. He was on a freight train going south on the Hudson River division of the West Shore railroad, about thirty or forty miles south of Ravena. He was the rear brakeman, and his principal duty was to protect the rear end of the train by flagging wheneverstops were made. When the train was in motion he rode in the caboose. Another freight train was proceeding south only a short distance behind- the train on which the plaintiff was employed. The distance between the' two trains as they proceeded south varied from a few car lengths to half a mile. The train on which the plaintiff was employed was very heavy, and a short time before the accident the engine on the rear train “ nosed onto ” the first train and assisted it át a place in the road where there was an up grade. The train on which plaintiff was employed then went on a short distance ahead of the rear train, but as they came to another up grade the rear train again approached the first train for the purpose of assisting it, as before. Both the trains were running from six to twelve miles an hour. The plaintiff was in the cupola of the caboose, and just before the engine of the rear train reached the caboose or immediately thereafter one piece of the air hose connecting cars that were about twelve cars distant ahead of the caboose suddenly burst, and the first train came immediately to a standstill, resulting in the plaintiff falling from the cupola to the floor. . The engine of the rear train smashed the caboose, and the plaintiff received the injuries to recover for which this action is brought. A. H. Cowie, for the appellant. E. H. Wells and Thomas S. Jones, for the respondent. [MAJORITY — Chase, J.:] Chase, J.: The duty of a railroad company to use reasonable care to protect its employees from injury while engaged upon its trains embraces the obligation to use reasonable care in furnishing suitable machinery in the first instance, and to keep it in repair so that their lives may not be exposed to unnecessary peril. The duty of proper inspection for the purpose of discovering defects which may arise from use is a part of the duty owing by the company to its servants. (Bailey v. R., W. & O. R. R. Co., 139 N. Y. 302; Bailey v. D. & H. Carnal Co., 27 App. Div. 305.) Reasonable care involves proper inspection, and negligence in respect of it, in such cases as this, is the negligence of the master, and none the less so when the inspection is committed to a servant. (McGuire v. Bell Telephone Co., 167 N. Y. 208.) 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. (Eaton v. N. Y. C. & H. R. R. R. Co., 163 N. Y. 391.) Where a railroad company has assumed to inspect cars at a terminus of a division of its road by servants especially designated for that purpose, a rule of the company requiring brakemen to “ look over the train carefully before starting and know that all couplings, brakes and running gear are in good order. Inspect the train as often as possible during the trip,” does not impose the duty of inspection upon the brakemen equally with the car inspectors and constitute them fellow-servants within the rule exempting the master from liability for the negligence of the coservant, and a failure to discover defects which might constitute negligence in a car inspector does not necessarily establish contributory negligence on the part of a brakeman, but the question is one for the jury. (Eaton v. N. Y. C. & H. R. R. R. Co., supra.) The system of inspection adopted by the defendant at Ravena, so far as it related to the air hose, included a test by the engineer of the train which was made by putting the air pressure on the pipes and hose and “ lapping the valve,” which would show to the engineer whether the pipes or hose were leaking. The. system of inspection so adopted by the defendant also included personal examination of the cars and appliances by car inspectors especially designated for the purpose. This duty is described by the foreman of such inspectors at Ravena as follows: “I walked over the train on each side and examined the cars to see what condition they were in; we examined them with our eyes; looked; I didn’t feel every different article to see if it was all right;, we looked and our examination was an examination .of everything; we examined hose by looking at them, but not by feeling of them Unless they were in bad condition. I mean by that some difficulty that appeared by looking at them, and some leak.” ■ Notwithstanding the engineer testified that he made the test from the engine while at Ravena, and did not discover a leak in the air hose, the plaintiff testifies that after he had performed other duties described by him he heard air escaping on the car ahead of the caboose and put in a new gasket to prevent the leak; that he then heard air escaping from the second car from the caboose and put in a new air hose there where he found one broken, and that the train started thereafter before he could get back to the caboose. There is no evidence that plaintiff had any special knowledge of air hose,' or that he had ever received any instructions from the defendant or any person in regard thereto. It does not appear that the plaintiff had any time or opportunity to look over the train further than he' did examine and look it over or that he would have known that the hose was defective if he had seen it before the accident. It is conceded that, if the air hose that burst was not in such a condition when at Ravena as to indicate to a prudent and competent inspector that it. was not reasonably safe or at least that it should have a further and more careful examination, the plaintiff cannot recover. ■ The plaintiff insists that the car. inspectors at Ravena wholly omitted to inspect any of the cars or appliances of the train before it started. These were questions of fact for the jury. We think there was sufficient evidence before the jury to sustain their verdict. The judgment and order should be affirmed, with costs. All concurred, except Houghton, J., dissenting. Judgment and order affirmed, with costs.