It was decided in Gottlieb v. New York, Lake Erie & Western Railroad Company (100 N. Y. 462), that a railroad company is bound to inspect the cars of *402another company used upon its road, just as it would inspect its own cars. That it owes this duty as master, and is responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. That when cars come to it from another road which have defects, visible or discernible by ordinary examination, it must either remedy such defects or refuse to take them. This duty of examining foreign cars must obviously be performed before such cars are placed in trains upon the defendant’s road or furnished to its employes for transportation. When so furnished the employes whose duty it is to manage the trains have a right to assume that, so far as ordinary care can accomplish it, the cars are equipped with safe and suitable appliances for the discharge of their duty, and that they are not to be exposed to risk or danger through the negligence of their employer. The defect complained of in this case was obvious and discernible to the most ordinary inspection and could have been easily remedied. It is argued by the defendant that it had fulfilled its duty when it had furnished for the use of its employes crooked links which could be used in coupling together cars upon which the bumpers were of different heights. We do not think that in this case that fulfilled the measure of defendant’s obligation. It could not be so held unless it was the duty of the plaintiff to examine and inspect the cars to ascertain whether the coupling appliances were in proper condition. The duty of examination, like the duty of furnishing proper machinery and appliances in the first instance, rests upon the master. (Fuller v. Jewett, 80 N. Y. 46; Gottlieb v. N. Y., L. E. & W. R. R. Co., supra.)
And the degree of vigilance required from a railroad corporation in this respect is measured by the danger to be apprehended and avoided.. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 546; Salters v. D. & H. C. Co., 3 Hun, 338.) While in the case of corporations the performance of this duty must be committed to employes, there is no presumption that it rests upon any particular individual. It is -not within the apparent scope of a brakeman’s duty and does *403not necessarily rest upon him. In the absence of all evidence upon the subject, we cannot, therefore, presume that the examination and inspection of the particular cars in question had been committed to the plaintiff, and unless it had he had a right to assume that the master’s duty had been performed by those having it in charge, and that the coupling appliances upon the cars were adequate to the performance of his work without extraordinary risk or danger.
It is further contended by defendant that the accident was one of the ordinary risks of plaintiff’s employment and was liable to happen in coupling any cars. Some evidence to which our attention is called, given by plaintiff on his cross-examination, standing alone would give some color to this claim, but, read in connection with the other testimony, shows that it is only when the cars are' propelled against each other with great force that the dead-woods are liable to come together and thus endanger the brakeman making the coupling.
The evidence is that when the moving cars are backed upon the stationary car at a slow rate of speed, or at a speed ordinarily used in making couplings, that the bumpers or draw-heads will take the whole shock and the dead-woods will not meet, but there will be a space between them of from two to eight inches. Doubtless the danger of injury arising from the engineer’s bacldng the train upon the stationary car with great force is a risk which the brakemen must assume, and for which the corporation would not be responsible, but that was not the risk to which the plaintiff was exposed.
The evidence is that the train was backing up slowly and at a rate of speed that would not have brought the dead-woods in contact if the bumper had been in order. Because the bumper of the moving car was defective and hung lower than it should have done, it passed under the bumper of the stationary car and permitted the dead-woods to come together.
The defective bumper was thus shown to have been the proximate cause of the accident. It was literally the causa causans. Its immediate effect was to permit the dead-woods of the two cars to come together, and the plaintiff was, from *404that cause, exposed to a danger not within the ordinary risks of his employment.
This result was traceable directly to the defendant’s failure to provide the moving car with bumpers in good order, and unless the proof showed (which it did not) that plaintiff himself was in some way responsible for that condition of the car, the negligence of the defendant was established.
The question as to the plaintiff’s contributory negligence was, I think, one of fact for the jury. He testified that when the cars were four or five feet apart he saw that the bumper of the moving car was lower than the bumper of the stationary car. It does not appear that he observed that it would pass under the bumper of the stationary car, or that there was any danger that the dead-woods would come together. On the contrary, he appears to have 'thought that the coupling could be made with the straight link that was in the draw-head. He had a right to assume that fact, and that the coupling appliances were in good order. It was only at the moment that the cars were about to collide that he discovered his error.
The court cannot affirm that for such an error of judgment, induced as it was to some extent by defendant’s neglect, he is to be held to have been careless. Under such circumstances, when the whole transaction is the occurrence of a moment, a man is not to be held responsible if he errs as to the estimate of the danger that confronts him. If he acts the part of a prudent man, willing to and intending to perform the duty to which he has been assigned, he has done all that the law demands of him, and whether he acted such a part, under the circumstances of this case, was for the jury to determine.
The judgment of the General Term should be reversed and a new trial granted, with costs to abide event.
All concur, except Follett, Oh. J., and Potter, J., dissenting, and Haight, J., not voting.
Judgment reversed.