#### Samuel Donaldson, Appellant, *v.*Brooklyn Heights Railroad Company, Respondent.

Second Department,

December 30, 1908.

Railroad—negligence — fellow-servant—unsafe machinery.

Where injury to a conductor was caused by the parting of a link in the brake chain on a car run by a fellow-servant, and it appears that the car was inspected once a week and the electrical equipment every twenty-four hours and there was nothing to indicate on a reasonable inspection that the chain was weak, and the only foundation for the plaintiff's case was the testimony of an expert as to a test which he claimed should be applied to all cars before leaving the barn, but which was not shown ever to have been used in the actual operation of street cars, there can be no recovery on the ground of negligence in furnishing unsafe machinery.

Hooker, J., dissented.

Appeal by the plaintiff, Samuel Donaldson, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of Kings on the 6th day of March, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term.

*Frank Harvey Field [G. Burchard Smith*with him on the brief], for the appellant.

*D. A. Marsh [George D. Yeomans*with him on the brief], for the respondent.

Woodward, J.:

The plaintiff was a conductor on one of the defendant’s street cars in May, 1904, and while engaged in the discharge of his duties was caught between his car and a car following it, sustaining serious injuries. The complaint alleged negligence on the part of the defendant in the employment of one Casey, the motorman on the colliding car, knowing him to be incompetent, and that it was negligent in that it “ furnished and supplied the car on which said Thomas Casey was a motorman, in a defective, improper and unsafe condition, because the machinery thereof was in such a condition that the same could not be readily stopped, or stopped with reason*434able expedition ; the brakes, gearing and machinery being old, worn, defective and ont of repair, as was well known to said defendant long prior to the happening of the accident hereinafter mentioned.” The answer denied these allegations, and upon the trial it was not attempted to be shown that Oasey was incompetent, so that the case depended entirely upon the plaintiff’s being able to show that the defendant was negligent in providing the car with suitable appliances, in proper condition, for controlling the car. The plaintiff’s own witnesses showed that the car was properly equipped; that it carried the standard equipment of one of the responsible companies furnishing these equipments, and the evidence established that the accident resulted because of the parting of a welded link in the equalizing chain of the brake mechanism, and that an inspection of this link, after the accident, did not disclose a worn or defective condition, or anything which a reasonable inspection would have led any one to anticipate that it would not stand the strain put upon it in the ordinary use. The car had been overhauled at the shops within one month of the time of the accident; it was shown that it was inspected generally once each week, and that the electrical equipment was inspected every twenty-four hours, and the only possible foundation for the plaintiff’s case rests upon his expert, who testified to a test which he claimed should be applied to all cars before leaving the barn, but it was not shown that any such test had ever been applied by any surface railroad in the practical operation of its lines upon the streets of a city, and it would be holding the defendant to a degree of care unknown to the law to hold that it was guilty of negligence because it had failed to apply a test which was suggested after the accident had happened, and which was not shown to have been found necessary in any practical operation of surface cars anywhere in the country. It is always comparatively easy, after an accident has happened, to show how it might have been avoided, but the test of negligence is what reasonably prudent men would or should have done in view of all the known facts prior to the accident, and tried by this test, the plaintiff has clearly failed to establish negligence on the part of the defendant in the equipment of this car, or in its inspection. So far as the evidence goes, and it is all from the plaintiff’s witnesses, the car was properly equipped ; it had just come out of the shop after an overhauling; *435it was regularly inspected once each week, and the link of the chain which parted did not show any signs to indicate that it had any defects, nor is it at all certain that even the test which the plaintiff suggests would have discovered the weakness, for it appears that the accident was due to the negligence of Casey in running his car over a curve with the brake set, which put such a strain upon the chain as it was not intended to bear, and this is the probable cause of the break, and not the application of the brake in the ordinary effort to stop the car. But in any event the plaintiff failed to bring out actionable negligence on the part of the defendant, and the complaint was properly dismissed.

The judgment appealed from should be affirmed.

Jenks, Gaynor and Miller, JJ., concurred; Hooker, J., dissented.

Judgment affirmed, with costs.