O'Leary v. . Erie Railroad Co.

Landon, J. The plaintiff’s act in moving the fourth car • was not a negligent act if he had reasonable grounds to believe that the defendant had set the brake upon the rear ear of the string of coupled cars. The defendant had placed the cars there and had not set the brake upon the rear car. If the defendant had sufficient cause to apprehend that the plaintiff or his fellow-workmen would, in the usual course of his or their service, start the forward cars without looking to see whether the rear brake was set, in reliance upon defendant’s usual custom to set it, then defendant had notice that its omission to set the brake was setting a trap into which the plaintiff or his fellow-workmen would be in imminent danger of falling, and thus that its omission would expose the plaintiff to the danger which befell him. This would be, in legal sense, thp sole negligent cause of plaintiff’s injury, for without such negligence it would not have happened, and no negligence of the plaintiff would have contributed to it. The verdict of the jury, upon evidence tending to support it, establishes just the situation stated. The defendant is liable because although it owed no contractual duty to the plaintiff, it had a contract with his employer under which plaintiff was, with the defendant’s consent, engaged in moving these cars for defendant’s benefit, and it was defendant’s duty to perform whatever service it undertook in execution thereof with reasonable care, and not to omit such customary care as usually sufficed to protect plaintiff and his fellow-workmen from danger, upon which it knew they habitually relied. *293 The contract does not impose any duty of care upon the defendant in placing the cars, nor when defendant undertakes to place them, does it exempt it from care. The obligation of care arises from its duty to do what it undertakes to do in such way as not to lead others, as lawfully present and employed as itself, into dangers created by itself and not obvious to them. The defendant had voluntarily assumed to perform the first step in the sequence of acts, in which the plaintiff’s act would be the second, and known to defendant to be a dangerous one if the first should be negligently performed. Hence, the duty of reasonable care rested upon defendant, and under the circumstances reasonable. care was the defendant’s customary care, because defendant had notice that plaintiff was accustomed to rely upon it. The judgment and order should be reversed and the judgment entered upon the verdict affirmed, with costs in all the courts. Parker, Ch. J'., Gray, O’Brien, Haight, Cullen and Werner, JJ., concur. Judgment accordingly.