Ford v. Lake Shore & Michigan Southern Railway Co.

Earl, J.

This action was brought by the plaintiff to recover damages for the negligent killing by'the defendant of her intestate, a switchman in its employ. In her complaint she bases her charge of negligence mainly upon the following grounds : the running of an unsafe and unsuitable car; the careless and negligent loading of the car without fastening the timbers securely thereon; failure to properly inspect *461the car by proper and competent inspectors, and failure to provide proper and suitable rules for the government, control and instruction of its employees. The material facts as they appeared upon the trial are as follows: On the 29th day of May, 1887, the Buffalo Car Manufacturing Company sent to the defendant’s docks on the Hamburg canal nine cars to be loaded with heavy timber and car sills taken from canal boats. The cars are what are known as gondola cars, generally used for carrying coal, and had boxes from eighteen to twenty-four inches high. They were not regular lumber cars, but were very much used upon all the roads running in and out of Buffalo for carrying lumber. Regular lumber cars are flat cars with iron brackets on the inner sides into which are placed stakes for the purpose of holding the lumber in place.

These cars had no brackets on the sides for stakes and there was nothing but the boxes to hold the lumber. On some of the cars the ends of the boxes dropped down, and. on others they were, like the sides, fixed and stationary. The lumber was placed inside these boxes, and where the timbers were longer than the cars and the ends dropped down it was loaded flat, and on the cars where the ends of the boxes were fixed and stationary one end of the timber was laid down on the bottom of the car and the other end projected over the end of the box in cases where the timber was longer than the box.' The lumber was piled after it reached the top of the box so that one piece overlapped another, the pile thus constantly growing narrower towards the top. On some of the cars the lumber was piled a foot and a half higher than the boxes. The ear from which the lumber fell upon the intestate was one upon which the ends of the boxes were fixed and stationary and the timbers projected over one end. Thin strips of board had been nailed to the sides of the box, as it is claimed by the plaintiff, to hold the timbers on the car ; but as claimed by the defendant and proved upon the trial they were simply guides in *462piling the lumber and were placed there for the purpose ; and the lapping of the timber one piece upon another, receding from the sides, was relied upon to keep the pieces in place. The nine cars were loaded by the employees of the defendant in charge of and under the direction of a foreman of great experience who had been engaged in loading and handling cars for eight or nine years. This lumber was to be drawn about a mile, simply from one part of the city to another. The cars, all loaded in. the same way at the same time, all went safely except the one from which the lumber fell upon the plaintiff’s intestate. After the cars were loaded they were carefully inspected by two foremen, and they considered them safely and properly loaded. Gondola cars like the ones in question were very generally used for the transportation of lumber for short distances, and these cars were loaded as such cars usually were for that purpose. The court charged the jury that there was no evidence that the defendant was called upon to establish any system of rules which should provide for any different or safer method in the loading of the lumber than the method described by the witness Davis, defendant’s foreman, as in use by it. We think that charge was correct, but whether it was or not the plaintiff is not in a position to complain of it, and the question of suitable rules is therefore out of the case.

There is no question upon the evidence that the two foremen, who inspected and superintended the loading of these cars, were perfectly competent men, and therefore it cannot be said that the defendant failed to provide competent and proper inspectors. The only ground of negligence, therefore, remaining to be considered is whether the defendant furnished suitable cars and appliances. There can be no question that this was a suitable car. It- did not break. It was strong and capable of holding timbers, and such cars were generally used for that purpose. It is entirely plain that the sole cause of the accident was the negligent and improper loading. The defendants having furnished the *463■cars, the employees should have placed the timbers on those cars which had movable ends to the boxes, so that the timbers could be laid down flat; and when they placed the long timbers in the particular car from which the accident •came, they should not have piled them up so high as to make the pile dangerous. There was no emergency or necessity for putting a high pile of timbers upon any one •car to be drawn the short distance. But if the employees •desired to put a high pile of lumber upon any one of these cars, it is undisputed that suitable stakes have been furnished by the defendant to put inside the boxes where they could have been properly fastened and thus have held the lumber as securely as if piled upon platform cars with iron brackets upon the sides and stakes placed therein. It is too obvious for dispute that the sole cause of this accident was the improper loading of the car, and that if the employees of the defendant had properly loaded it, and made proper use of the stakes and materials the company had furnished, the accident would not have happened. These employees were the co-employees of the intestate, and for their carelessness the defendant is not responsible. In the case of Bushby v. The New York, Lake Erie & Western R. R. Co., 107 N. Y. 374; 12 N. Y. State Rep. 9, the plaintiff, a brakeman on a car loaded with lumber, was thrown off from the car because an imperfect stake broke, while the car was in motion, and he was thus injured; and it was held that the defendant was liable on the ground that it had not furnished any stakes for holding the lumber in place after it was put upon the car. The main features of that case are, therefore, unlike those which exist here.

This case bears some resemblance to the case of Byrnes v. The New York, Lake Erie & Western R. R. Co., 113 N. Y. 251 ; 22 N. Y. State Rep. 936, where a brakeman upon a lumber car was injured because it was improperly loaded; and it was held that the defendant having provided a safe car and a safe system and competent men to inspect it, was *464not responsible for the negligence of co-employees in the performance of their work.

We are, therefore, of opinion that upon the defendant’s motion the court should have directed a verdict in its favor and the judgment should, therefore, be reversed and a new trial granted,- costs to abide event.