William H. Plank, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

William H. Plank, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. (Argued January 29, 1875; decided February 9, 1875.) This action was brought to recover damages for the alleged negligent killing of plaintiff’s intestate, George H. Plank. The deceased, at the time of the inj uries resulting in his death, was a brakeman in defendant’s employ, running upon a freight train. Such train stopped at Palatine Bridge and was backed on to a side track or turn-out • to permit another train to pass. Some cars were standing on the switch, and the deceased was directed by the conductor to couple them to the train, and in obeying the order was injured. Plaintiff’s evidence tended to show that, as deceased was engaged in the act of coupling, he stepped into a sluice-way or trench about two feet wide and deep, which run under the tracks; it was walled up with stone and timbers laid across for the tracks; in the middle of the switch track a board or plank was laid across, and some distance outside of the track a stone; otherwise the trench was left open. It was in the night season. and there was snow on the ground. It also appeared that the train of the deceased had been in the habit of stopping there, and that he knew of the trench. The trench, it appeared, had been thereover ten years, in the same condition. Plaintiff was nonsuited. Held, error; that defendant was bound to provide an ordinary and reasonably safe place for the performance of the work of coupling cars; that the jury might have found that the plank across the trench was not a safe or convenient standing or walking place for one engaged in that ■ work, as it was midway and right under the attachment by means of which the cars were coupled, and that the trench made the place unsafe to a brakeman whose hands and eyes were engaged in the act of coupling; that it was to be presumed, from the manner of the construction of the trench, that it was put there by defendant’s instrumentality, and that it was ordered by a superior officer or agent, clothed with such powers as to be its representative, and not by a fellow-servant with the deceased; and that the evidence of defendant’s negligence was sufficient to require the submission of the question to the jury; also that the fact of the knowledge of the deceased of the existence of the trench was not sufficient to charge him, under the circumstances, with contributory negligence, as the act in which he was engaged necessarily required his whole attention and thought; and that the act itself, of coupling cars while in motion, was not negligence, as it can scarcely be done otherwise. D. Pratt for the appellant. B. F. Chapman for the respondent. [MAJORITY — Per Curiam] Per Curiam opinion for affirmance of order and for judgment absolute against defendant on stipulation. All concur; except Folger and Allen, JJ;, not voting. Order affirmed and judgment accordingly.