#### James Donohue, Adm’r, Besp’t, *v.*The Brooklyn City R. R. Co., App’lt.

*(City Court of Brooklyn, General Term,*

*Filed May 25, 1891.)*

1. Master and servant—Negligence.

Plaintiff’s intestate, a boy seventeen years old, had been employed as brakeman two weeks, when, in attempting to couple an engine to certain cars he was crushed between them. It appeared that the bumper or drawhead of the engine was lower than that of the car, thus allowing them to come within four inches of each other. *Held,*that on all the evidence the questions of defendant’s negligence and of the contributory negligence of the deceased were for the jury to determine, and that a motion to dismiss was properly denied.

2. Same—Negligence op co-servants. ’’

It is only where the master has done his duty in providing suitable appliances that negligence of a co-servant will exonerate him from liability.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

*Chas. J. Patterson,*for resp’t; *Morris & Whitehouse,*for app’lt.

Osborne, J.

Plaintiff brought this action as administrator of his son’s estate, to recover damages for the death of Ms son, alleged to have been caused by the negligence of defendant.

Defendant operates a steam railroad from Twenty-fourth street in this city to Fort Hamilton. Deceased, a boy of seventeen years of age, was in the employ of defendant as a brakeman, which position he had held for about two weeks prior to the injuries which resulted in his death. On August 17, 1890, deceased started to couple the engine to a train of two cars at Fort Hamilton for the return trip to Brooklyn; as the engine was moved toward the car to be coupled, deceased went between the engine and car, and took hold of rhe draw-bar which was attached to the drawhead of the engine, and attempted to guide it into the draw-head of the car; the engine temporarily in charge of a brakeman, as it neared the car, moved a little faster than it had been going, deceased missed the coupling, the engine came in violent contact with the car, and deceased was so badly crushed between them that he died in two days afterward.

It appeared from the evidence on behalf of the plaintiff that it was usual to have bumpers on the car and on the engine, and that these bumpers were as well for the protection of the brakeman as of the car, in case the coupling was missed. The car in question was .furnished with a bumper extending out four and a half to five *486inches; the drawhead on the engine extended about six inches out from the engine, and served as a bumper, it also having a slot in it for the drawbar to fit into. When Donohue missed the coupling, as above stated, and the car and engine came in contact, it "was shown that by reason of the engine bumper or drawhead being three or four inches lower than the car bumper, the engine bumper passed under the car bumper, and, instead of there being a space of ten or eleven inches between the engine and the car on coming together, as would have been the case if the bumpers had met, there was only a space of four or five inches left for deceased to stand in, and he was consequently crushed. Plaintiff claimed that the failure of the defendant to provide bumpers .properly placed so as to meet each other, and thus keep a space open between the car and engine for the safety of the brakeman, con-" stituted negligence on its part which caused the death of his in testate.

Plaintiff had a verdict, and from the judgment entered thereon and the order denying motion for a new trial, defendant now appeals. Q

At the close of plaintiff’s case, the learned counsel for the defendant moved to dismiss the complaint on the grounds:

1st. That the evidence failed to establish negligence or failure of duty on the part of the defendant towards the deceased.

2nd. That the evidence established the fact that the injury was caused by the negligence of a co-servant.

3rd. That the evidence showed contributory negligence on the part of the deceased.

The motion was also renewed after all the evidence had been put in. Both motions were denied by the learned trial judge, and the denials were excepted to. The exceptions so taken are the only points to which the learned counsel for the appellant has addressed himself on this appeal.

It was unquestionably the duty of the defendant to take all reasonable precautions to insure the safety of its servants while in the performance of their duties, and if the death of the intestate in this case was due to the failure of the defendant to take such precautions, it will not be seriously disputed, we apprehend, that the defendant is liable. As already stated, the negligence of the defendant here complained of was in not having its car and engine so arranged that the bumpers would meet, instead of one passing under the other.

In *Ellis*v. *N. Y., L. E. & W. R. R.*Co., 95 N. Y., 546, the court of appeals held that it was a duty the defendant owed its employes to provide cars with buffers appropriately placed. The same proposition was again enunciated in *Gottlieb*v. *The Same,*100 N. Y., 462, and cases there cited, and in *Goodrich*v. *N. Y. C. etc., Co.,*116 N. Y., 398; 26 N. Y. State Rep., 767.

The learned counsel for the appellant claims that these decisions are not applicable in the case at bar, as they applied only to freight cars; that in the case of coupling an engine to a car, no such precautions are necessary, because the engineer can see the brakeman, and can keep his engine under control, so rendering it perfectly *487safe to make the coupling. The fact that deceased lost his life in the present case would seem to he the strongest possible argument as to the fallacy of this contention. Plaintiff’s evidence went to-show that it was usual to have these bumpers for the protection of the brakeman, and defendant, by its evidence, sought to show the contrary. The learned trial judge charged the jury on this point as follows: “ You have heard the testimony on both sides, and it is for you to determine whether the negligence of the defendant in respect to the arrangement of these bumpers, as plaintiff contends, in their not coming together, whether that was negligence on the part of the defendant, and whether that negligence brought about the death of this young man.” This was certainly, on all the evidence, a proper question to leave to the jury to-determine, and the verdict indicates that the jury deemed the defendant negligent.

As to the second ground of the motion to dismiss, viz: that the injury was caused by the negligence of a fellow servant, defendant sought to show that the engine was backed by the brakeman in charge of it at an undue rate of speed, and that he was negligent in so doing. It is a well settled rule that the application of this proposition presupposes that the master or employer has done his duty in providing suitable appliances. As was said by Judge Danforth in *Ellis*v. *N.Y., L. E. & W. R. R. Co., supra,*p. 552, “ This rule, however, has no application if the company has at the same time disregarded its obligation to provide either a suitable road bed or engines, cars or other necessary appointments of the railroad, so that the injury is not entirely caused by the negligence of the fellow servant, but, in part, at least, is the result of that omission of duty. In such a case the negligence of the co-servant will not exonerate the company from the consequences of its own default. ” It seems to us that this is a conclusive answer to the second ground of the motion to dismiss.

As to the third ground, that the evidence showed contributory negligence on the part of the deceased, this was clearly a question for the jury; it was submitted to them by the learned trial judge, and the jury have found against the defendant We can see no ground, on any of the points stated, for interfering with the verdict.

The judgment and order denying motion for a new trial should be affirmed, with costs.

Clement, Oh. J., concurs.