Dougherty v. Rome, W. & O. R.

Merwin, J. There was evidence in this case from which the jury had a right to find that the injury happened by reason of the defective character of the false stake, so called, and the imperfect manner in which it was attached to the drop stake. Had they a right to say, as they did, in effect, by their verdict, that these defects in regard to the false stake were chargeable to the defendant? Was the false stake a part of the equipment of the car .which the defendant was obliged to furnish under its liability to furnish a reasonably safe equipment for the use of its employes? The counsel for the defendant [843] claims that this case cannot be distinguished from the case of Byrnes v. Railroad Co., 113 N. Y. 251, 21 N. E. Rep. 50, and that, under the authority of that case, the judgment here must be reversed. On the other hand, the counsel for plaintiff claims that the case of Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. Rep. 407, fully sustains the theory npon which this case was given to the jury. In the Byrnes Case the plaintiff’s intestate was in the defendant’s employ as a brakeman upon a freight train, and was assisting in taking into the train a car loaded with lumber at a way station. While this was being moved to the main track, he got upon it to stop it, but, in consequence of the improper manner in which the car was loaded, the brake was rendered useless, a collision occurred, and he was injured. The car before it was loaded was in perfect condition, with a brake in good order, and entirely adequate for the purpose for which it was intended. By the negligence of the person who loaded the car, the lumber was placed against the brake rod, and also against the wheel at the top of the brake, so that thereby it became impossible to use it. The defendant by its rules made it the duty of the station master to either inspect the car himself, or have some one do so, before it was taken out, and, had this been done, the improper loading would have been discovered. It was held that the defendant was not liable, and that the question was not affected by the fact that the car was loaded by the owner of the lumber. The court in the opinion says: “It cannot, we think, be properly contended that the master fails to provide a car which is a safe and proper one, or that he fails to provide one with proper appliances, because, through the negligent manner in which the car is loaded, the appliance is, on that account only, made useless for the purpose for which it was intended.” In the Bushby Case the plaintiff was in the employ of the defendant as a brakeman upon a freight train that had in it a car loaded with lumber, and was injured by reason of the breaking of a defective stake of the lumber car. The car, as furnished by defendant to the shipper, had iron sockets for stakes or standards, which were necessary in order to load the car. Eo stakes were furnished by defendant, as it was the practice of the defendant to furnish lumber cars without stakes, which were supplied by the shippers. The shipper put a stake in each of the sockets, and loaded the car with lumber, under the direction of defendant’s station agent. The defendant claimed, among other things, that “the stakes were not appliances or machinery, within the rule which requires a master to furnish-, with reasonable care, proper and adequate machinery or other appliances for the proposed work,” but, on the contrary, “were appliances furnished and employed by the shipper in loading the car with lumber to be transported by the defendant.” It was, however, held that the stakes were a part of the car, and that defendant was chargeable with negligence if it failed to exercise proper care that suitable and proper ones were furnished, and that defendant’s practice or custom was no defense, as it only showed that it delegated to shippers a duty it should have performed itself. In the opinion it is said: “This rule should apply to any appliance which is made part of the structure, and it can, make no difference that it may be for an occasion rather than constant use. The question relates to the condition of the car when placed in the hands of the servant, and its delivery to-him raises for his benefit the implication that the employer has used suitable care and foresight in adopting it as an instrument or means to carry on its business. Upon this he might rely as an assurance, not only that the body of the car and its running gear were safe, but that the needed requirement for the reception of the load placed upon it was also fit for the purpose. The platform and the stakes constituted the bottom and the sides of the ear, and one was as much a part of it as the other.” In the same case at general term (37 Hun, 105) it is said by Smith, P. J.: “The stakes were used to keep the lumber in place upon the car, and were a part of the apparatus and appliances necessary for the transportation of lumber. The transportation of lumber [844] was not an exceptional and unprecedented thing upon defendant’s road. It was done frequently, and as often as occasion required. The defendant had provided cars for the purpose, furnished with pockets for the reception of stakes, and stakes were used whenever they were needed to keep the lumber in place. They, or some other apparatus to keep the lumber in position, were necessary to the prosecution of that branch of the defendant’s business.” In the present case it is not claimed that the drop stake, as such, was defective, and the defendant claims it w’as not bound to furnish any other, and that whatever was done to lengthen this drop stake is to be deemed part of the operation of loading the ear, and therefore within the principle of the Byrnes Case. There is evidence tending to show that the load upon this car was an ordinary sized load for a lumber car, and that it was a part of the business of the defendant to transport this kind of lumber in this way. There was no evidence that it was loaded any higher than was usual for such lumber, and not in the ordinary way. It is quite apparent that for the safe carriage of such a load it was necessary to have stakes as long as the drop and false stakes combined. It is therefore difficult to see how the liability to furnish suitable stakes did not cover the whole. The case would therefore seem to call for the application of the rule of the Bushby Case, and make it proper to treat the drop and false stakes together as the stake provided by the defendant. That being so, it would follow that the case on that subject was properly submitted to the jury. ■ The case of Ford v. Railroad Co., 117 N. Y. 638, 22 N. E. Rep. 946, does not apply, as there the defendant liad furnished suitable stakes, but the coemployes of the plaintiff’s intestate had neglected to use them. It does not appear that the station agent of defendant at Richland had anything to do with the loading of the car in question. He had, by the rules of the company, some duties in regard to the loading of freight cars. He testifies that he had nothing to do with the equipment of cars; that he saw that they were properly loaded. If the agent failed to perform his duty, and thereby contributed to the injury, that would not relieve the defendant from the result of the failure upon its own part to discharge its corporate duty. Fuller v. Jewett, 80 N. Y. 46. The court upon this subject charged as-favorably to defendant as it had a right to expect. Ho question is made about contributory negligence. Upon the motion for nonsuit, a point was taken as to a release executed by the plaintiff, but this is not urged here. It is further claimed by the defendant that the damages are excessive. The plaintiff received a severe injury, was confined to his bed about eight weeks, much pain and suffering were consequent upon the injury, and the necessary method of treatment. His leg was permanently shortened, and there is evidence tending to show that his nervous system is permanently affected. He was at the time of the injury about 32 years old, and his ability to labor materially impaired. We find no sufficient reason to disturb the verdict upon this ground. It follows that the judgment should be affirmed. ■ Judgment and order affirmed, with costs. All concur.