#### CONNORS v. ELMIRA, C. & N. R. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Injury to Servant—Failure to Observe Danger.

As a brakeman stepped from between the cars he had coupled, he was-caught and injured between one of the cars and a wagon which had been left during the dinner hour beside the track by a person who had been unloading coal. It did not appear that the wagon had ever been left so-near the track before, except once, about two weeks before the accident, but the railroad company had no actual notice thereof, and its proximity to the track at the time of the injury could have been seen by the brakeman as he passed along the track to couple the cars, had he looked. *Held,.*that the railroad company was not liable.

2. Same—Proximate Cause—Number oe Servants.

A brakeman was caught between one of the cars he had just coupled and a wagon which stood beside the track, and was injured. His signal to back up, given before he made the coupling, was readily seen by the fireman on the engine, and the wagon was in a direct line between the two employes. *Held*that, -since the fireman might have warned the brakeman of the wagon’s proximity, the fact that there were less than the usual number of employes on the train at the time of the injury was not the-proximate cause thereof.

Appeal from circuit court, Cortland county.

Action by William Connors against the Elmira, Cortland & Northern Railroad Company to recover damages for personal injuries. From a judgment of nonsuit, and from an order denying a motion on the minutes for a new trial, plaintiff appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

*927T. E. Courtney, for appellant.

Kellogg & Van Hoesen, for respondent.

MERWIN, J.

On the 26th April, 1892, the plaintiff was the head" brakeman on a local freight train of the defendant running from Cortland to Canastota. He had been in the employ of the defendant for several years as brakeman or extra conductor on this train.. The train, consisting of 18 or 20 cars, arrived at Perryville about noon. About a mile northerly of Perryville there was a side track on the easterly side of the main track, about 500 feet long, called" “Britt’s Siding,” made for the accommodation of a limekiln and" stone quarry at that place. As the train left Perryville, it was cut in two, and the plaintiff, with two or three cars and the engine, having on it the engineer and fireman, went ahead for the purpose of leaving a car at the siding. The balance of the train came on behind, it being down grade, and stopped before reaching the side track. The plaintiff, as" he passed along, left one of his cars on the main track, and then proceeded to the northerly end of the side track, and backed in onto it for the purpose of coupling onto and" taking out two cars that were on the side track. He made the coupling to one, and then he walked along its side, between it and the main track, to the end of the car, and then walked on the side track about 25 feet to the second car; then signaled the engineer or fireman to back up, which was done, and the plaintiff made the coupling. As he stepped out from between the cars he was caught between the corner of one of the cars and the front" wheel of a wagon that stood beside the last car coupled, and received an injury which is the subject of this action. The car last coupled was a gondola coal car. During the forenoon of the day in question, Mr. Raymond, an employé of Mr. Worlock, one of the operators of the limekiln, had been engaged with team and wagon in unloading, in the usual way, the coal from the car, and drawing it to the limekiln.. At noon, and about half an hour before the accident, Raymond unhitched the team, and left the wagon by the side of the car, between the side track and the main track, and went to dinner, intending to come back after dinner and go on with the work.

According to the testimony of the plaintiff, the wagon was so near the car that there was not enough room for him to stand between it and the car as he stepped out after making the coupling. He claims that the defendant is chargeable with negligence in allowing the wagon to be left so near. The team or wagon did not belong to defendant, and was not used by it. There is no evidence that it had ever been left so near before, except on one occasion, about two weeks before, when it was substantially in the same situation for a period of about two hours, and no actual notice of this-to the defendant is claimed. The wagon and team had been used about there before in the process of unloading cars, but in no way dangerous to the defendant’s employés. It is difficult to see how defendant can be charged with negligence in reference to the wagon. Breil v. City of Buffalo, 144 N. Y. 163, 38 N. E. 977.

*928The plaintiff had for several years passed over this road twice daily, except on Sundays. He testifies:

> “I had worked upon this switch before. I had placed cars in there, and I had taken cars out of there; so that I knew the situation, and the locality, and the condition that it was in, except the wagon. I knew as to what there was on. the west side of the switch and on the east side of the switch.”

As he came along that noon, and passed on the main track to the north end of the side track, he was on top of the cars, and passed by the coal car and by the wagon. They were about 30 feet distant, and in plain sight. The plaintiff, as, after coupling the first car, he passed along its side and along the side track to the second car, could have seen the wagon, had he looked; and so he could as he stepped out from between the two cars after he made the coupling. It is not clear that the plaintiff was himself free from negligence. See Thompson v. Railroad Co., 153 Mass. 391, 26 N. E. 1070.

The plaintiff claims that the defendant was also negligent in that, upon the train that forenoon, there were only two brakemen, whereas usually there were three, and if there had been three he might have been warned of the wagon. The plaintiff testifies, “Left one car on the main track, so that we had one car and the engine when we went onto the- switch.” He could signal readily to the fireman, who was about 60 feet off when the last coupling was made. The side track was on a curve, and the fireman’s side of the engine . was on the inside of the curve, as was also the wagon. If the plaintiff’s signals were readily seen by the fireman, the wagon could also have been readily seen, as it was in the direct line of vision, and the fireman could have warned the plaintiff if he so chose. Very clearly, the lack of help was not the proximate cause of the collision. Williams v. Railroad Co., 39 Hun, 434.

We are of the opinion that the court did not err in holding that the evidence was not sufficient to show that the plaintiff had been injured by reason of any negligence of defendant, without any negligence on his part that contributed to the injury.

Judgment and order affirmed, with costs. All concur.