The reversal is based on the authority of Bernardi v. N. Y. C. & H. R. R. Co. (78 Hun, 454). In that case the explosive was conveyed on a flat car so near to the locomotive as not to be protected from the sparks therefrom, and it was held that *436it was a question for the jury whether the defendant exercised due care to furnish safe means for the transportation of this explosive. Assuming in the case before us that the car on which the dynamite was being transported did not comply with the defendant’s rule that it should be “first-class in every respect” for the reason that it was not equipped with air brakes, nevertheless such rule was supplemented with another rule that cars for carrying such explosives “ must be placed in tlieir train as near the middle as possible.” It clearly appears that this latter rule was disregarded by the defendant’s employees. If it were necessary that-the air brakes on all the cars' equipped therewith should be' used, nevertheless it was possible to place the car in question considerably nearer the center of the train. But the evidence shows that air brakes could be disregarded and cars equipped therewith could be used without reference thereto and thus placed at the end of the train, and no reason appears why that could not have been done in the train in question and the car of dynamite placed in the center of such train. In any-event, as above stated, such car could have been placed much nearer the center. There seems to have been a clear disregard of a rule which if observed would .have prevented such consequences as resulted from the accident in question. Were it not for the rule as'to the placing of this car as near the middle of the train as possible and the failure of. defendant’s employees to comply with such rule, perhaps the Bernardi case would be applicable. But it falls short of reaching the present situation. It is idle speculation and guess work to reason that, if- this car had been equipped with air brakes it would have occupied any other position in the train.
I think, therefore, the judgment should be affirmed.
Judgment reversed and new trial granted, .with-costs to appellant to abide event.