#### Robert Sutton, as Administrator, etc., of Edward Sutton, Deceased, Plaintiff, v. The Erie Railroad Company, Defendant.

Fourth Department.

May 3, 1911.

Railroad — master and servant. — negligence — death of brakeman — erroneous nonsuit. .

Action-to recover for the death of a brakeman alleged to have been caused by the negligence of the railroad employing him. The accident occurred on a dark night. The deceased at the time was in charge of two freight ears which were being switched to a track where a train was being made up. It was his duty to hold the ears by the brake so that they would come slowly against the cars to which they were to be attached. His lantern was seen to go to the top of one of the cars and later he was found cut in two near the track. Ño one saw the accident and there was no direct evidence as to how it happened. One of the cars on which . he had worked had a defective brake. It was not a stormy night and the car tops were not slippery. The deceased was young, active and experienced.

*Held,*that a nonsuit at the close of plaintiff’s case was error;

That the jury might legitimately have inferred that the deceased was. operating the defective brake; that the defect caused the accident and that the deceased was free from contributory negligence;

That deceased was not bound to examine the brakes in the darkness to see whether or not they were defective.

McLennan, P. J., and Robson, J., dissented.

*123Motion by the plaintiff, Robert Sutton, as administrator, etc., for a new trial upon arcase containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Niagara Trial Term in January, 1911.

*Leggett & Thibaudeau*and *Eugene M. Ashley [Augustus Thibaudeau*on the brief], for the plaintiff.

*Moot, Sprague, Brownell & Marcy*and *John W. By an,*for the defendant.

Williams, J.:

The exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide event.

The action was for negligence. The deceased at the time of the accident was a brakeman in the employ of the defendant •and had been for four months. He was a member of a yard engine crew at Suspension Bridge. The accident occurred at about ten o’clock of a dark night on a track used for switching cars and making up trains. No. one saw the accident. Deceased was found right after it, his body cut in two. He had charge of two cars running along, and it was his duty to go upon one of the cars and hold them by the brake, so they would come slowly against the cars in the train to which they were to be attached. His associate brakeman was upon another moving car upon the same track. He saw deceased’s lantern upon one of the two cars, but he did not see deceased himself, and could not see which of the two cars the light was upon. His car ran up against the southerly of deceased’s two cars, and he could not tell whether his car or one of deceased’s ran over him. He thought the lantern was on the northerly car. This was the only direct evidence as to the accident itself or how it happened. The administrator, the father of deceased, a car repairer in defendant’s employ, went to the yard the next morning early and examined the two cars the deceased had charge of, and found a defective brake upon the northerly car on the end next the southerly one, and the roof of the. car near it decayed and loose, so that the brake was in an unsafe condition. He also found blood on the wheels of the south car. The particulars of *124the defective condition of the brake need not be particularly described for the purposes of this appeal. The father testified that the brake would not work properly, would swing out by reason of its defective condition and the condition of the roof of the car. The nonsuit was granted, not because of a failure to. show defects existed in the condition of the brake and car which might have caused the accident if the deceased was using the brake and in so doing was thrown or fell from the car, but upon the ground that there was no sufficient evidence that deceased was handling the brake and was exercising proper care in so doing.

. I think the nonsuit was improperly granted, that the case should have been left to the jury. The only question is whether, from the circumstances proven, the jury might have inferred that the deceased was operating the defective brake, that the defect caused the accident and deceased was free from contributory negligence. It was his duty to go upon the top of the cars and use a brake to hold the cars. His light, did go up and the inference might well have been made that he went with it, though in the darkness his associate could not see him. It being his duty to use a brake the inference would have been fairly drawn that he did use one. The inference that he used the defective brake and not a perfect one, and that the accident resulted from such defect, might have been drawn from the facts that it was not a stormy night, that the car tops were not, therefore, slippery, and that he was young and active and experienced in the work, and would not have been likely to slip off the car or fall while operating a perfect brake, and he would have been more likely to fall or be thrown off by using the defective brake.

As to contributory negligence, the night was dark, he would not be likely to know or discover that the brake was defective, and he had a right to rely more or less upon the assumption that the brakes on the cars were free from defects. He-would« not have been expected to examine the brakes in the darkness to see whether -they were defective or not. -

Many cases have been cited by counsel- which bear more or less upon the question .of inferences, in the absence of direct evidence and in death cases. I do not regard it as necessary to *125discuss them in this opinion. No two cases are alike. I think this is one where inferences might have been drawn, which would have authorized a verdict for the plaintiff.

All concurred, except McLennan, P. J., and Robson, J., who dissented upon the authority of *Henson*v. *Lehigh Valley R. R. Co.*(194 N. Y. 205).

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event.