George A. Miller, Respondent, v. Erie Railroad Company, Appellant

George A. Miller, Respondent, v. Erie Railroad Company, Appellant. Negligence—the failure of a railroad corporation to inspect a “push pole,” used, to-enable an engine to push a car on an adjoining track, is not negligent. A railroad corporation which, for the purpose of enabling an engine on one track to push cars upon.another, track, makes use of “push poles,” consisting of' hickory sticks eight feet long, and tapering from six inches in diameter in the. middle to four inches in diameter at the ends where they are bound with iron, rings (the poles wearing out in the course of their use and others being provided to be substituted), is not guilty of negligence because it fails to inspect-them after they have once been put into use; it is entitled to rely upon the. presumption that defects in them will be discovered by those using them. Appeal by the defendant, the Erie 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 Orange on the 10th day of November, 1896, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 24th day of November, 1896,. denying the defendant’s motion for a new trial made upon the. minutes. Henry Bacon, for the appellant. William Vanamee, for the respondent. [MAJORITY — Cullen, J.:] Cullen, J.: The plaintiff was employed as a switchman in the yard of the. defendant at Middletown. In moving cars in the yard'it was customary' to use a push pole, by which an engine on one track was-enabled to move or push a car on an adjoining track. It was part. ■of the plaintiff’s duty to place the push pole in position between the •engine and me car to be moved. While engaged in this work, the push joole broke and the plaintiff was very severely injured. The push pole was a hickory stick, about' eight feet long and six inches in diameter in the middle, tapering to four inches at the ends, where the stick was bound by iron rings. There was evidence tending to show that the stick was somewhat cross grained, and in one place •dozy or decayed. There was evidence to the effect that the .cross grain tended to make the stick weaker, but whether it was so great that in ordinary practice the stick should have been rejected, did not appear.. There was a conflict in the testimony as to whether the decay or doziness occurred before the stick was furnished for use, or.since that time. The evidence for the defendant tended to establish that the real cause of the accident was that the engine struck the pole a" heavy blow instead of approaching the stick very slowly until contact was had. The trial court charged: “ Proper inspection for the purpose of discovering defects which may arise from use is part •of the duty which the company owed the plaintiff, as well as reasonable inspection to determine its fitness before it was used. . * * * Or would a reasonable inspection after it was in use have discovered that it was faulty, are questions of fact for you to determine from the evidence.” The defendant excepted tó the charge that negligence could be predicated on the failure to inspect the push pole-•during its use. It also asked the court to instruct the jury that it was not the duty of the defendant to inspect it during the course of such use.. This the court refused. Assuming that a case was made out for the jury to pass upon, provided they found that the stick was defective and insufficient when originally furnished, we think the court erred in instructing the jury that they might find the defendant negligent in failing to subsequently inspect the pole. This pole was the simplest possible appliance; a mere stick of wood. It may be that original defects in it were concealed by the paint of stain, but decay that occurred in its use would be properly first observed by those who used it.. These, sticks also wore out in use.. Others were provided that might be substituted.. It seems to us that this case falls within the principle of Marsh v. Chickering (101 N. Y. 396); Cahill v. Hilton (106 id. 512); Cregan v. Marston (126 id. 568). There is no duty resting on an employer to inspect during their use those common tools and appliances with which every one is conversant. If a spade, a .hoe or a push stick either wears out or becomes defective the employer may ordinarily rely on the presumption that those using the article will first detect its defect. The judgment and order appealed from should be reversed and a new trial granted, costs to abide event. All concurred, except Bartlett, J., not sitting. Judgment and order reversed and new tidal granted, costs to abide the event.