Patrick Butler, Respondent, v. New York and Queens County Railroad Company, Appellant

Patrick Butler, Respondent, v. New York and Queens County Railroad Company, Appellant. Negligence — a railroad employee crushed between d motor car and aflat car on the corner of which he was sitting, by reason of the brake shoes falling off—when the questions of negligence and contributory negligence are for the jury.' In an action brought to recover damages for personal injuries sustained by the ' plaintiff while in the employ of the defendant, a railroad company, it appeared that the defendant’s foreman directed the plaintiff to select a car for the .purpose of transporting certain ties thereon, and that while the plaintiff, whose duty required him to accompany the car selected by him, was seated upon a corner of the car, which was being pushed to a switch by a motor car coupled to it, the brake shoes with which the flat car was fitted suddenly fell off, in consequence of which that car was derailed amd the plaintiff’s leg, which was hanging over the end of the- flat car, was crushed between it and the motor car. Held, that, upon the evidence, the questions of the defendant’s negligence and of the plaintiff’s contributory negligence were for the jury, and that a judgment entered upon a verdict in favor of the plaintiff would not be set aside. Appeal by the defendant, The New York and Queens County 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 Queens on the 12th day of December, 1898, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 13th day of December, 1898, denying the defendant’s motion ■for a. new trial made upon the minutes. The action was brought to recover damages for personal injuries sustained by the plaintiff, an employee of the defendant, through the latter’s alleged negligence. The accident out of which the action arose happened while the plaintiff was sitting on the corner of a flat car which was being pushed by a motor car to á switch, and was caused by the sudden falling of the brake shoes- from the flat car, in consequence of which the flat car was derailed, causing the motor car to collide with it and crush the plaintiff’s leg, which was hanging over the end of the flat car. Francis Fa/rquhar, for the appellant. William C. Beecher [Robert G-oeller with him on the brief], for "the respondent. [MAJORITY — .Pee Cubiam :] .Pee Cubiam : The plaintiff in this case was injured, as he claims, by reason of a defective appliance which.was furnished him by the defendant and used in and about the performance of the duties which he was directed to perform. When the car was loaded with the ties it appears that he, together with the persons employed-in. and about "the same .occupation, was given a ticket to ride in the passenger car to which the loaded car was attached. The passenger car was equipped with motive power and pushed the loaded car to the point of destination. It is undoubtedly true that during that trip, from the place where the loaded car was received to the point where the ties were unloaded, the plaintiff was bound to ride in the passenger car and did so. After the car was unloaded, it appears that, in order to remove it from the main track so that the passenger traffic might proceed unimpeded, it became necessary to push this car a short distance to a switch, upon which the same might be shunted. The passenger car was coupled to this flat car for the purpose of pushing it to the switch, and the plaintiff, in the discharge of his duties, was required to accompany the car. The jury were authorized to find from the testimony that the plaintiff was not furnished with a ticket to ride in the passenger car to the switch. It . was comparatively a short distance, and as the duty devolved upon him required that lie should go, we think he may not be charged with contributory negligence, as matter of law, in riding upon the flat car. Nor do we think he is chargeable with contributory negligence, as matter of law, by reason of his taking the ¡position thereon which he did. If the cars were in good order, the position which he occupied was not so palpably dangerous that we cam say it was negligence upon his part to" occupy it. We think this question, in view of the distance the car was to go and the circumstances of the case, was a question for the jury, and their finding is conclusive thereof. It was the duty of the defendant to exercise reasonable care in furnishing a safe and suitable car for the purposes for which it was to be used, and upon the discharge of this duty by the defendant,, the plaintiff had the right "to rely. The evidence warranted the jury in finding that the car was defective and was so known to the defendant, or in the exercise of reasonable care might have been known. It appeared that, some time prior to the accident, the superintendent had béen notified — at least the jury were authorized so-to find — that the car was out of ¡repair, and when the foreman sent the plaintiff to obtain this car, the latter was directed to select the best one. The accident happened by reason of the sudden falling of the brake shoes from the cari This was evidently a defect of which the plaintiff could not reasonably be supposed to- have had notice, and it was also a defect from which the jury were authorized to find that the defendant, in the exercise of reasonable care, should have had knowledge. The question, therefore, whether the defendant had discharged its obligation in furnishing a safe and suitable car became one of fact for the jury, and their finding establishes the negligence of the defendant in this regard, and furnishes a safe basis for supporting the recovery which has been had. It follows that the judgment should be affirmed. Judgment and order unanimously affirmed, with costs.