Gottlieb v. New York Cent., L.E.&W.R. Co.
| Decision Date | 24 November 1885 |
| Citation | 100 N.Y. 462,3 N.E. 344 |
| Parties | GOTTLIEB v. NEW YORK CENT., L. E. & W. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Lewis E. Carr, for appellant, New York Cent., L. E. & W. R. Co.
John W. Lyon, for respondent, John Gottlieb.
This action was brought to recover damages for personal injuries received by the plaintiff while in the discharge of his duties as a brakeman on a freight train of the defendant. While trying to couple two cars he was crushed between them, sustaining serious injuries. Whether he was chargeable with contributory negligence was clearly a question of fact for the jury, and the trial judge did not err in submitting it to them, nor in his charge in reference thereto. The sole questions for our consideration are whether there was any evidence of the defendant's negligence for submission to the jury, and whether there were any errors in the charge, or refusals to charge, of the trial judge in reference thereto.
At the time of this accident the defendant's road was so arranged that both broad and standard gauge cars could be run upon it in the same train, and there were both kinds of cars in the train upon which the plaintiff was acting as brakeman. The train broke in two in the night-time, while under way, and the two cars which he was required to couple were of different gauge, and, failing to make the coupling, the drawheads passed each other, and, the bumpers not being wide enough to protect his person, he received the injuries complained of. The evidence tends strongly to show that the main purpose of bumpers at the ends of freight cars is to protect brakemen while in the discharge of their duties between the cars, and that they should be sufficiently wide to protect the body of a brakeman when the cars come together. When the drumheads meet they furnish the protection. But they are liable to pass each other, and when they do the brakeman who happens to be between the cars is exposed to danger, the only protection against which are the bumpers. When two cars come together which are of different gauge the draw-heads are more apt to pass each other; and hence, in trains made up of cars of different gauge, it is obviously more important that the bumper should be well looked to, so that they may afford the protection for which they were intended. In this case the evidence tended strongly to show that the bumper on each of the two cars which the plaintiff was attempting to couple was made of a strip of wood only three inches thick, nailed onto the car, thus leaving when the cars came together a space of only six inches, wholly insufficient for the protection of the brakeman. The defendant was under obligation to its employes to exercise reasonable care and diligence in furnishing them safe and suitable implements, cars, and machinery for the discharge of their duties; and upon the assumption that the defendant was responsible for the condition of these cars, as if they were owned by it, there can be but little doubt that the evidence was ample to show that it had failed in its duty to the plaintiff. The defect was an obvious one, easily discoverable by the most ordinary inspection; and it would seem to be the grossest negligence to put such cars into any train, and especially into a train consisting of cars of different gauge.
But these two cars did not belong to the defendant. They belonged to other companies, and came to it loaded, and it was drawing them over its road to their destination. They were in good repair, and the defects were in their original construction, they being just as they were originally made. The defendant claims that it was bound to receive and transport these cars over its road, and was under no responsibility for any defect in their structure, and that the plaintiff, upon entering into its employment, assumed all risks from such defects. It is not necessary in this case to lay down with precision the rule which governs the responsibility of railroad companies as to the cars of other companies which it is engaged in transporting over its road. In Baldwin v. Railroad Co., 50 Iowa, 680, it was held that it does not constitute negligence, for a railroad company, in the ordinary course of business, to receive and transport the cars of other roads in general use which may not be constructed with the most approved appliances; and that the transportation or use of such cars by the company is one of the risks which an employe assumes in undertaking the employment. In Ballou v. Railroad Co., 54 Wis. 257, S. C. 11 N. W. Rep. 559, it was held that one railroad company receiving a loaded car from another, and running it upon its own road, is not bound to repeat the tests which are proper to be used in the original construction of such a car, but may...
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