Wynn v. Central Park, North & East River Railroad

Patterson, J.

The immediate cause of the accident which resulted in the injuries sustained by the plaintiff was the breaking of a link in the chain connected with and forming part of the braking apparatus attached to the car. The negligence imputed to the defendant was not only in the alleged improper conduct of the driver in driving at a dangerous rate of speed, but also in allowing the car to be used with a braking equipment out of order or imperfect. Testimony was given relating both to the construction of the chain and as to an inspection of the running gear of which it was part. It was shown that it consisted of twenty-one one-inch and seven two-inch links. The small links were three-eighths iron and the large ones of seven-sixteenths diameter, and were part of the same braking appliance, in character, that was used on all the cars of the company. There was no testimony to the point that the chain was not, if in good condition, adequate to any strain that might be put upon it in applying the brake, or that, if in proper condition, it would not suffice as an appliance suitable and sufficient for the purpose for which it was used, or that there was any safer or better appliance in use. On that point the only issue before the jury was as to the condition of the chain and the care and prudence exercised by the defendant in inspecting or examining it to ascertain its condition prior to the car being sent out on the day the accident happened.

Notwithstanding that situation of the case, there was imported into the trial an element, the introduction of which could not but prejudice the defendant and raise a false issue. The plaintiff requested the court to charge that “the appliances used by the company must be the best appliances which skill and science has contrived and which are in practical use.” That request was complied with and an exception was taken. That statement of the law was reiterated by the court.

In commenting upon the subject of the obligation of the plaintiff to prove that the negligence of the defendant’s servant was the sole cause of the injury the learned court again said to the jury: “ It will be necessary for you to determine from the evidence whether the appliances which were used to operate the brake were the best which skill and science had contrived and which were in practical use.” Whether that is quite an accurate statement of the abstract rule of law, it is not now material to inquire. That a railroad company may be chargeable with negligence to one injured, from a failure to introduce improvements in its apparatus which have been tested and found materially to contribute to the safety of passengers and which it is reasonably practical to adopt, is true (Smith v. N. Y. & Harlem R. R. Co., 19 N. Y. 127), but there was no evidence in this case to raise the question of there being any other or different or superior apparatus in use with which the defendant could have equipped its car and which would have tended to insure greater safety to the passengers upon it. All the testimony on the subject of the nature of the braking apparatus was in one direction. Three witnesses called by the defendant testified on that topic. Gerard swore that he knew of no other method of applying power to stop a horse car than the one used. Romaine, a car builder, swore that he-knew of no other or better way of working brakes than that used on this car, and that it was the method in use on all cars, whether operated by horse power or by electricity, and that he had never heard of the breaking of one of the large links in a chain. Oakley, an assistant superintendent of the Madison Avenue line, never heard in all his experience of a chain breaking in the way the one on this car did. There is nothing to contradict or impair the effect of this evidence. There was nothing to go to the jury on the question of the general character or sufficiency of the chain and brake if it were in good order when the car went into service the day of the accident. The charge of the learned judge opened an issue that was not in the case, and we cannot say that it may not have been upon some notion that a better braking apparatus in design or general character should have been furnished that the jury acted in finding their verdict. For this reason, and without considering the many other errors assigned, the judgment should be reversed, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Williams, J., dissented.