McDonald v. Fitchburg Railroad ( 1897 )

Putnam, J.:

Plaintiff brought this action to recover damages sustained by him in attempting to couple two cars while employed by the defendant as a car coupler and brakeman. The injury occurred on February 19, 1893. ' He had then been in the employ of the defendant about five weeks. The two cars the plaintiff was attempting to couple belonged, one to the Delaware and Hudson Canal Company, and the other to the Delaware, Lackawanna and Western Railroad Company. Plaintiff alleged 'that the injury was occasioned by reason of one of the couplers or drawheáds being lower than the other, and by reason of defendant’s neglect to furnish suitable and proper'links and appliances for coupling or connecting said cars.

Although it did not appear how. long these cars had been in the possession of the defendant-prior to the accident, it owed a duty to its employees, before using, to inspect them, and was responsible for the consequences of such defects as could be discovered by ordinary inspection. ;(Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y. 398; Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 id. 462.)

The plaintiff on the trial produced evidence tending to show the defendant’s neglect to furnish suitable and proper appliances for coupling said cars, and that in consequence thereof his hand was caught' between the bumpers of said cars and- he received serious injuries, to recover damages for which the action was brough

The defendant then called as a witness Michael P. Snyder, defendant’s superintendent, who testified that a book shown him was a book of rules and regulations of the defendant, in operation during the year 1893; that said book is delivered to all employees of the railroad at or upon entering the service of the corporation and was in the year 1893. The defendant then offered to read certain of the rules and regulations therein. The evidence thus offered, on the objection of the plaintiff, was excluded by the trial court.

During the examination of said witness the following questions were asked by defendant’s counsel, testimony taken, and rulings made: “ Q. In 1893 was there a rule or regulation upon this road printed requiring all brakemen to use coupling sticks when coupling freight cars? [Objected to. Sustained. Defendant excepted.] Q. (Presenting same) Do I now show you a coupling stick ? A. Yes, sir. It is about two feet long, about an inch and a half wide, one-half inch thick, made of hard wood; there is a screw at the end. In 1893, the year that plaintiff worked there, it was used for the purpose of coupling freight cars. The method of use was to hold thé link up, and, instead of putting a man’s hand in there, they use this; so when this coupling stick was used, it was not necessary for the man to get his hands between the deadwoods. In 1893, at the time the plaintiff worked there, we had on hand a large supply of those sticks ■; they were kept in the yardmaster’s office and in my office and in the supply room; I delivered them to the employees on demand. Q. Was there a printed rule or regulation tacked up and posted on the bulletin- board in the yard where this plaintiff worked in 1893, requiring the use of those coupling sticks by all employees? [Objected to as.immaterial. Sustained. Defendant excepted.] ”

The evidence thus excluded was material on the question of plaintiff’s contributory negligence, and, I think, should have been received. The witness had stated that a large supply of coupling sticks had been provided for the use of the employees of the road, with which cars could be coupled with safety. He had also stated before that a copy of the rules and regulations of the company was given to each ■employee -of the corporation on entering its service. Had he also been allowed to prove that a copy of the rule requiring the use of the coupling sticks by all employees was posted and - tacked up in the yard where the plaintiff worked in 1893, the jury would have been authorized to find that the plaintiff had notice of the regulation in question. In O'Malley v. N. Y., L. E. & W. R. R. Co. (67 Hun, 130,133) Judge Dykmaít remarks: “It'did not fully appear that the plaintiff had seen the rule, but, as it was accessible to him, and it was his duty to examine it, he must be charged with knowledge of its existence.” . .

We do not hold in this case that the plaintiff should be charged with knowledge of the existence of the rule'in question, but merely that the testimony excluded, by which the defendant sought to show that a printed regulation was tacked up or posted on the bulletin board in the yard where plaintiff worked, was ' competent, in connection with the other testimony in the case, to go -to the jury on the question of fact as to whether or not the plaintiff had knowledge of the rule in question. It is true that the plaintiff, as a witness,, denied any knowledge of the rule. ■ But, being a party interested in the result, his credibility as a witness was for the jury.

As the evidence thus excluded was competent on the question of plaintiff’s contributory negligence, and its exclusion may have affected the result, it follows that the jtidgment should, be reversed and a new trial granted, costs to abide the event. •

. All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.