Opinion
Argued October 24, 1898
Decided November 22, 1898
John G. Milburn and John J. Beattie for appellant. Lewis E. Carr and John W. Lyon for respondent.
The first proposition contended for by the plaintiff is that it was the duty of the defendant to furnish cars equipped with deadwoods which would prevent the drawheads from coming in contact when a coupling was being made. It is apparent from the evidence in this case that the purpose of deadwoods is not to prevent the drawheads from coming together, but they are placed upon cars for quite a different purpose.
The single question presented upon this appeal is whether it is the duty of a railroad company to so equip its cars and trains that the drawheads thereon shall not come in contact when cars are being coupled. This court has several times considered the purpose of drawheads and held that it was negligence for a railroad company to use cars where the drawheads would not come in contact. ( Gottlieb v. N.Y., L.E. W.R.R. Co., 100 N.Y. 462; Goodrich v. N.Y.C. H.R.R.R. Co., 116 N.Y. 398.) In the case at bar it has been held that it was negligence to use a car where the drawheads would meet.
We think the evidence shows quite clearly that the meeting of the drawheads is an ordinary incident of coupling cars and a condition to be expected when a coupling is made, and was, therefore, one of the ordinary risks of the service in which the plaintiff was engaged. His employment was necessarily hazarduous, and when he entered it he assumed all the risks and perils of the service and those that were known to him or were apparent to ordinary observation. That one of the risks which he assumed was the danger of injury from the meeting of drawheads when coupling cars, there can, under the evidence, be no doubt. Indeed, it is a matter of common knowledge that drawheads to cars are liable to and ordinarily do come in contact when cars are being coupled, and that a risk of injury therefrom exists whenever a brakeman is performing that service. Therefore, under the evidence, it is obvious that the plaintiff's injury arose from a cause which was included in the risks which he assumed.
But it is said that the defendant was negligent in using a car upon which there were no deadwoods. If that were assumed, still the plaintiff could not recover unless he proved that their absence was the cause of his injury. When we look at the record, we find that practically all the evidence in the case is to the effect that the function of deadwoods is not to prevent drawheads from coming together, and at most there is but a mere scintilla of evidence to the contrary. Under those circumstances, this court would not be justified in holding that the plaintiff's injury was the result of the defendant's omission to place deadwoods upon the car in question. As was said by this court in Hudson v. R., W. O.R.R. Co. ( 145 N.Y. 408, 412): "Where the evidence which appears to be in conflict is nothing more than a mere scintilla, * * * this court will still exercise jurisdiction to review and reverse if justice requires." Applying that rule, it is evident that the absence of deadwoods on the defendant's car was not the proximate cause of the plaintiff's injury, and hence he could not properly recover upon that ground.
It is true, as claimed by the plaintiff, that he testified upon the trial that the drawhead in the car was loose and broken, and that "the spring was out of the drawhead — out of the car." This was the only evidence in the case which tended to sustain the allegations of the complaint that the coupling appliances were broken or defective. But we find no evidence in the record to show, or which even tends to show, that the plaintiff's injury in any way resulted from that cause.
It is at least problematical if the plaintiff sufficiently established his freedom from contributory negligence to justify the submission of the case to the jury. It appears from his own testimony that it was "perfectly light" when he uncoupled the tender from the car; that he saw the drawhead and could see the link. It must, therefore, have been sufficiently light when he undertook to recouple them to see the absence of the deadwood if he had looked, so that if its absence was the cause of his injury he could, by the use of ordinary prudence and reasonable care, have discovered it, and was negligent in not doing so. But it is doubtful if that question is before us, as there is no exception which clearly raises it.
But, independently of the question of contributory negligence, we are of the opinion that the court erred in denying the plaintiff's motion for a nonsuit, and that for that reason the judgment should be reversed.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed, etc.