(dissenting):
Each bale of hay was about four feet and two inches long, two feet wide and twenty-two inches thick, weighing a little over 200 pounds. They were placed in the car standing on end, in two tiers one on top of the other. The car was well filled, and, as testified by one witness, “there was just'.room enoiigh to shut the door; piled just so close — so we couldn’t slide the door.” And by another witness: “The hay rubbed on the door when I opened it at the top.” The door was fastened and sealed by the station agent of the defendant, but there was no inspection as to the manner of loading by him or by any one on behalf of the defendant. Nor had there been any rule promulgated by the defendant providing for a method of loading baled hay in its cars.
The car was left by the defendant on a switch track. in the yard of the consignee, and the plaintiff with a. man. named Loveland attempted to unload it. The car door stuck fast and the plaintiff put his hands against the lower part of the door, which was about four feet from the ground and up about as high as the plaintiff’s shoulders, and attempted to push it open. He succeeded in pushing the lower part along about a foot, but was unable to crowd it further. Loveland then got up in the opening partly in the car and pushed against the door, and Hammond, an employee of the defendant, took hold of the brace or handle on the other end, and the three "together moved it along. ' Loveland, evidently observing the bales "of hay adjacent to the door and leaning against it were about to fall, jumped, telling the plaintiff to “look out.” Following Loveland came one bale of hay which struck the plaintiff on the back, knocking him to the ground, and the second bale also *253fell upon him. while he was upon the ground, breaking his leg and seriously injuring him.
It is the claim of the plaintiff that the hay was improperly loaded; that there should have been a rule of the defendant prescribing the manner of loading, or at least it should ‘have been inspected by the defendant. The defendant, on the other hand, contends that it had a right to rely on the shipper of the hay to load it properly and that there was no obligation upon it to inspect or to provide any rule as to the manner of loading. I think the jury were well justified in finding that the hay was improperly loaded. There is plenty of evidence showing that the bales of hay shoifid either be placed flat in the car, or if the bales in one tier stand up the long way on top or alongside of these bales there should be a tier lying flat down to hold them in place, and this would look reasonable. It seems clear that where two bales of hay, each over four feet in height, with an uneven base of from twenty-two to twenty-four inches, are placed on top of each other paaking a pile eight feet high a very little jar would cause them to fall. If these bales were piled close to the car door and leaned very slightly against it, as soon as the door was opened inevitably they would fall out. Common sense ought to indicate that it is improper and dangerous to place these bales standing out of plumb close against the door so that it must rub against them when opened. At least two. of the witnesses on behalf of the defendant testified on cross-examination in effect thgt it was dangerous to pile bales of hay in tiers standing on end, one on top of the other.
Again, I think it was the duty of the railroad company to inspect these loaded cars before they were shipped away. It could not delegate its duty as a common carrier to the shipper of .this hay. As soon as the hay came into its custody for transportation its liability as a common carrier began (Ames v. Fargo, 114 App. Div. 667; London & Lancashire Fire Ins. Co. v. R., W. & O. R. R. Co., 144 N. Y. 200), and it cannot absolve itself from liability upon a claim that the shipper was liable instead of it. If that rule were 'to obtain the deféndant could be relieved from liability to a third party, or its servants, very easily.
*254I think a rule could readily have been adopted to regulate the manner of piling hay and its enforcement would have prevented this accident, and the obligation was'imposed upon the defendant to exercise reasonable precautions to insure the safety of those who were to unload this hay. (Ford v. L. S. & M. S. R. Co., 124 N. Y. 493; Van Alstine v. Standard L., H. & P. Co., 128 App. Div. 60, and cases there cited.)
It is claimed, also, by the defendant that the plaintiff has failed to show freedom from contributory negligence. He was standing stooped over, pushing the lower part of the door which reached to his shoulders. He was devoting his whole attention to that business, as the door was binding' so that it was difficult to push it along. Assuming, as he testified, that he noticed that the hay was standing on end, he knew nothing.about how high it was piled, nor did he realize that it was resting against the door or that he was in any danger. Even Loveland, who got up in' the car to push the door at the top, did not apprehend the danger.
The plaintiff’s conduct must be judged by that of any man. of ordinary prudence engaged in the same kind of business. One thing was occupying his attention, and that is, pushing the door: He supposed he was in a place of safety and had a
right to assume that the hay was properly loaded. ■ He certainly had no reason to expect that as soon as the door was pushed open,- which was- the only place for taking out the hay, these heavy bales would begin to topple out. I think the question of his conduct was for the jury.
There is no question before us of the weight of the evidence, and we ought. not to hold as matter of law either that the defendant was not negligent or that contributory negligence is imputable to the plaintiff.
I think the judgment should be .affirmed.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.