#### William Wilson, Appellant, *v.*New York Contracting Company, Pennsylvania Terminal, Respondent.

First Department,

December 11, 1908.

Master and. servant — negligence—injury by cable railway — duty of master to inspect — facts raising question for juyy.

It is the duty of an employer to use reasonable, care to furnish suitable tools, appliances and machinery and to keep them in repair so that his employees may not be exposed to unnecessary peril. This includes the duty properly to inspect the appliances for the purpose of discovering defects which may arise from or during use.

While an employee must show affirmatively that the negligence of the employer was the sole cause of an injury, this need not be by direct and positive evidence, hut indirectly by proof of circumstances from which inferences may be drawn that the principal and essential facts exist.

When from the evidence two inferences can he drawn, one supporting and the other destroying the alleged cause of action, it is for the jury to draw the inference.

Where a foreman stationed at the foot of an inclined cable railway was injured by a brace on a descending car, which was bent out of its proper position, the defect being apparent upon inspection, and it is probable that the bending of the brace could not have taken place either during the descent of the car or before the descent commenced, it is for the jury to say whether the defendant had failed in its duty to inspect the car before allowing it to he used.

Patterson, P. J., and Laughlin, J., dissented.

Appeal by the plaintiff, William Wilson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 8tli day of June, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

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      *M. L. Malevinsky,*for the appellant.

*John Conway*Toole, for the respondent.

Scott, J.:

The plaintiff appeals from a judgment entered upon the dismissal of his complaint. Plaintiff had been in defendant’s employ from October, 1905, until April 6, 1906, the date on which he was injured. During all that period he was engaged in work incident to the disposal by cars and boats of material which defendant was removing from the site of the Pennsylvania terminal station in the city of New York.

Prior to this employment he had worked for other companies doing like work and by similar methods.

The material (blasted rock) was being taken over to the North river in work cars and the smaller rocks were dumped down the chutes into waiting scows. For the first months of his employment Wilson was connected with this work. For two months prior to the accident he was engaged as foreman in charge of the work of loading onto scows the laVger pieces of rock, big jagged boulders, which could not be dumped down chutes but must be handled singly by chains and hoisting machines called “telphers.” The cars containing these big pieces came over from the excavation by way of a trestle which ran through West Thirty-second street at a considerable elevation above the curb level. The ears that held the rock were let down from the west end of this trestle to the river level by an inclined railway about three hundred feet long, that passed them down to a dock or platform forty feet wide and eighty feet long. On the trestle, incline and platform were two narrow gauge railway tracks three feet six inches apart. The work cars were let down the incline by a steel cable operated by an engine. The method was this : A steel cable was attached to one car used as a “ pilot car the loaded cars were pushed to the edge of the incline with the pilot car ahead. As the cable was let out the loaded cars followed the pilot car down the incline. The cable attached to the pilot car passed back under the other cars and over a drum to the engine and was let out by the engineer as the cars were thus let down the incline.

The plaintiff Wilson was for two months prior to the accident *127the foreman in charge of the work of letting down and unloading the cars that came down onto the platform at the base of the incline. The platform was planked over between the tracks, at the side of the tracks and south of the south track. It would appear that the space was all covered with planking.

The duty of the plaintiff was to be about this platform, directing his seven or more laborers, signaling for trains to come down and superintending the unloading of the cars. This he did daily for two months, the trains making from thirty to fifty trips per day under his direction. Wilson claims that he was directed to stand between the tracks when he signaled trains, and it must be assumed on this appeal that he was so directed. The tracks were three feet six inches apart, and Wilson says he habitually stood between them. The pilot car concerned in this case was of the usual type of pilot car, being an ordinary flat car, of which many were in use in the excavation, with a wooden box loaded with stone on it to give it weight to hold the cars behind it. The car proper was of steel and wood construction, and had a flat top made of wood. Across this and a short distance from each end of the platform was a bolted steel brace, two to two and one-lialf inches wide and one-half inch thick. These braces were bolted onto the platform of the car, and each end was turned up so that they stood up from the platform like short cart stakes, and were apparently designed to hold the box on the car. These braces were on all the cars of the platform variety, and the only change that was necessary to fit the car for use as a pilot car was to put on it a box with stone to make it heavy. The box was a square wooden box, not smaller than a regular car box. This box could be put on any platform car. , The braces in their normal condition projected beyond the edge of the platform of the car five or six inches, and then turned up. They were braced from beneath by a brace welded or bolted to the upright, the brace being of steel.

These braces, therefore, provided four upright pieces of steel, one approximately at each corner of the car. The obvious purpose of the braces was to hold on the car the box which was put on to hold the material that was being carried.

On the day of the accident plaintiff was standing near a shanty at the south side of the dock or fiat space and fifteen feet from the *128tracks, when the signalman at the head of the incline called to him that a train was ready. Right in front of Wilson was' a platform south of the south track planked over at least four feet wide and twenty feet long. Apparently the whole platform was planked over in front of the shanty. Wilson signaled to let the train come down, passed over between the tracks and stood there with a stick in his hand to block the cars after they passed him.

As the pilot car ranged alongside of him he discovered that one of the lugs or braces was bent outward, and at the same instant the bent brace hit him on the leg, he was thrown under the moving cars and the unfortunate injuries followed.

Neither plaintiff nor Charneley, his witness, ever saw this car before so far as is known.

It does not appear that there was anything along the incline down which the train had come which would be likely to bend out the brace. It may, therefore, be inferred that it was bent out before the pilot car left the top of the incline. It further appeared that the pilot car was kept permanently loaded; that it did not run back to the excavation where the other cars were loaded with rock, but that it was kept standing near the top of the incline until the cars that had been loaded a considerable distance away were brought down to where it stood. It may be, therefore, also inferred that the iron brace was not bent outwards in the act of loading the car just before it made the trip on which plaintiff was injured. It also ajipeared very clearly that the defect would be perfectly apparent to any one.looking at the car, and could not have failed to be discovered upon any careful inspection. We think that there are two well-settled principles applicable to this case which require a reversal of the judgment. The first is that it is the duty of an employer to use reasonable care to furnish his employees with suitable tools, appliances and machinery in the first place, and to keep them in repair, so that they may not be exposed to unnecessary peril. This includes the duty of proper inspection for the purpose of discovering defects which may arise from or during use. *(Bailey*v. *R., W. & O. R. R. Co.,*139 N. Y. 305.) The second principle is that, while it is incumbent upon the plaintiff to show affirmatively that the negligence of the defendant was the sole cause of the injury complained of, it is not essential that this shall always be shown by direct and *129positive evidence. The proofs may be indirect, and the evidence had by showing circumstances from which the inference is fairly to be drawn that the principal and essential facts exist. When, from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them. *(Hart*v. *Hudson River Bridge Co.,*80 N. Y. 622.) It follows from this rule that if from the evidence two inferences can be drawn, one supporting and the other destroying the alleged cause of action, it is for the jury to say which of the two shall be drawn. *(Handy*v. *Met. St. R. Co.,*70 App. Div. 29.) Of course in considering an appeal from a non-suit, the plaintiff is entitled to the benefit of the most favorable inferences to be fairly drawn from the evidence. We find a defect in a car unmistakably apparent upon an inspection. We find also evidence which seems to render it improbable that the injury causing the defect in the car could not have been suffered either in the course of the trip down the incline or immediately before the descent was commenced. We think that under the circumstances, and upon the evidence as it stood when the. complaint was dismissed, a question was presented for the determination of the jury whether or not the defendant had not failed in the duty of inspecting the pilot car before permitting it to be used. The judgment must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

McLaughlin and Houghton, JJ., concurred; Patterson, P. J., and Laughlin, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.