(dissenting):
I think the order should be modified and affirmed.
In September, 1907, the plaintiff was employed as a brakeman by the defendant and, as his complaint alleges, was engaged in coupling an engine to a car standing on the tracks of the defendant when one of the defendant’s engines without any warning ran against the car to which plaintiff was coupling the engine and injured him so that his leg was amputated. He has brought his action claiming that the defendant was negligent. He charges several acts of negli-. gence — that the roadbed was inadequate; that the drawheads and connecting bar were not suitable, etc.
The severity of his injuries prevented him from knowing the precise condition at the time he was injured. He asked the defendant to be permitted to inspect its car, appliances and roadbed, and this privilege was denied him. He applied to the court at Special Term for an order of inspection in pursuance of section 803 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1909, and the court, in its discretion, granted the order. I can see no abuse of discretion in granting this order. It may be that an inspection by the plaintiff will be of no service to him, but he has been very seriously injured while in the employ of the defendant, and if that injury is due to the negligence of the defendant, as he charges, he ought to have the fullest opportunity to prove it, and the defendant seems bound to prevent any opportunity for him to do so.
IE the examination proves fruitless, then that is his misfortune. *426There can be no harm to the defendant because it can have all the men it desires present at the time the examination is made so that, there is no opportunity to manufacture proof against it. In fact, the criticism might be made of the defendant’s conduct that it is seeking to prevent proof being, given which might be of service to the plaintiff. ■
We cannot say in advance that the plaintiff may not be able to prove that the same condition exists now as at the time the accident occurred. He cannot prove that fact until lie knows the present condition, and then he can prove by witnesses whether the condition is unchanged. In any event an examination of the present condition of affairs may enable him to demonstrate that the defendant was negligent in some of the particulars charged which caused the injuries to him. We have one patent fact alleged in the complaint, that while in the performance of his duties in coupling an engine to a car in the, yards • of the - defendant, the car, at which he was at work, was run into by another car .at a high rate of speed, causing his injuries. With that fact to start with he should be given every opportunity, to prove his case.
The defendant does not claim that it cannot readily produce, for inspection the car and other appliances sought to be examined. In fact, it has photographs of this property denoting that it can be identified. ■
I think the order -is too broad.' It provides for an inspection “ forthwith.” It should be,"say, upon ten days’ written notice to the defendant’s attorneys. The plaintiff says the accident occurred in the “tunnel-like inclosure,” which is reasonably definite for the place. The inspection of “the engine, car [and] connecting bar between them ” should be made at this place, or at such other convenient place on the defendant’s premises as the defendant may select. The articles to be inspected, aside from the roadbed, are all movable property, and the place of inspection is not very important. The reasonable convenience of the defendant should be considered in fixing the date for the inspection, and the time for making it should be limited.
. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.