(79 Hun, 159.)

#### HASKINS v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Master and Servant—Defective Appliances—Knowledge of Master.

• Where a railroad employe was injured by catching his foot between two-rails where the blocking had come out, the company is not liable unless it had actual notice that the blocking was out, or unless the blocking had been out long enough to constitute constructive notice.

Action by Emma M. Haskins, as administratrix of Martin Has-kins, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. A nonsuit was granted at circuit, and plaintiff moves for a new trial, on a case and exceptions ordered to be heard in the first instance at general term.

Denied.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY. JJ.

John Gillette, for the motion.

J. W. Dunwell, opposed.

LEWIS, J.

This action was brought against the defendant to recover damages for the alleged negligent killing of the plaintiff’s husband. He was at the time in the employ of the defendant as a brakeman upon a local freight train, running between Rochester and Syracuse, by the way of Canandaigua. Part of his duties as a brakeman was to assist in making up and switching trains. In doing that work he was required to couple and uncouple cars and manipulate the switches. On the 6th day of November, 1892, while thus engaged in the defendant’s yard at Canandaigua, his foot was caught between a guard rail and an adjoining rail on the main track of the defendant’s road, and, not being able to extricate it, a passing car ran over him, causing his death. The alleged negligence of the defendant upon which the plaintiff based her right to recover was the absence of an appliance called “blocking” in the opening where the deceased’s foot was caught. There was evidence tending to show that a device had been theretofore adopted by some railroads, to a limited extent, known as “blocking.” It was done by inserting in the space between the guard rail and the main rail a piece of plank of such thickness as to permit the wheels of the locomotives and cars to pass over it. It was there fastened by driving spikes into it. There were a large number of guard rails in the Canandaigua yard, and about one year before the accident they had all been blocked. The device had not been adopted generally by railroads. One of the reasons why it had not been adopted was because of the great difficulty of keeping the blocking in place. Snow, ice, gravel, and other substances were liable to accumulate upon the blocks, and the flanges of the wheels, in passing over them, were quite apt to force them out of place. The evidence tended to show that in some cases they were almost immediately forced out; in other cases they would remain in place for a considerable time, the length of time being entirely uncertain. They were to some ex*275tent a protection to the employes, although not a perfect protection, for it was not practicable to have them of sufficient thickness but what the sole of the shoes of the operative might, notwithstanding the blocking, be caught. The blocking in this yard was constantly getting out of place. Some of them were replaced, arid others were not. At the time of the accident there were only about one-fourth of the blocks in position. It was found after the accident that the blocking was out of the guard rail where the deceased’s foot was caught. There was an entire absence, however, of any evidence as to the length of time it had been out. While it was the duty of the defendant to furnish a reasonably safe place and appliances for the deceased to perform the duties incumbent upon him, it is not by any means certain that the defendant was obliged to block the guard rails; but, if it be conceded that it owed the duty to the deceased to adopt the device, it was incumbent upon the plaintiff, in order to be entitled to recover, to show that the defendant had either, actual notice for a sufficient length of time before the accident that the blocking was out, so that it could have been repaired, or that the blocking had been out for such a length of time as to constitute constructive notice to the defendant. There was no evidence that it was not properly constructed in the first place, or that it was negligently displaced, and there was an absence of any evidence as to how long it had been out before the accident. It may, so far as it appears from the evidence, have been knocked out of place one hour before the accident occurred. It was incumbent upon the plaintiff, before she was entitled to have her case submitted to the jury, to show that the defendant’s negligence caused her husband’s death. This she failed to do, and was therefore properly nonsuited. The motion for a new trial should be denied, and judgment directed" for the defendant upon the nonsuit. All concur.