(dissenting).—At the close of the evidence the defendant’s counsel asked the court to direct a verdict upon the grounds:
“ First. There is no evidence whatever of the defendant’s negligence.
“ Second. On the ground of the plaintiff’s contributory negligence.
“ Third. That even assuming that the duty in this case was one to be performed by the master, there is no evidence that, under the circumstances in this case, the ordinary care required of the master had not been exercised on this occasion.”
At the close of the case numerous exceptions were taken to the charge as made, and to the refusal of the learned judge to charge as requested by the defendant’s counsel. The plaintiff had a verdict, and the exceptions were ordered to be heard at the general term in the first instanceTliey were there overruled. The opinion then rendered seems to me abundantly sufficient to sustain that result, and I am unable to find in the argument submitted to us in the interest of the railroad company any reasons sufficient in law for the reversal of the judgment which the supreme court ordered.
The first point made by the appellant is that the trial court erred in refusing to direct a verdict for the defendant. The plaintiff’s intestate was a switchman. While performing his duties as such, several sticks of timber from twenty-six to thirty feet in length and from five to twelve inches thick, part of the load of a passing car, fell from it and *465upon him, crushing him so that he died. This car was for all legal purposes the car of the defendant, employed by it in its business, and for its management the defendant is to some extent responsible. The law casts upon it a certain duty, and it is for the interest and safety of the community that the defendant be held to its performance. Was there evidence of negligence on its part? It was held in Bushby v. The R. R. Co., 107 N. Y. 374; 12 N. Y. State Rep. 9, not by way of formulating any new rule, but by application of a very old one, that it was the duty of the company as master to fit or prepare its car for the use for which it was designed. There the company had furnished a platform car without stakes or sides, and through the imperfection of the stakes finally provided its servant’s death was caused, and for that the defendant was required to make compensation. The same rule applies here. It was within the province of the master to furnish a suitable car for the carriage of lumber, and the proposition may be more specific, it was the duty of the master to furnish a car suitable for the carriage or transportation of that particular load of lumber. The concession of the defendant is that the “ car was not what is known as a regular lumber car.” It was in facta gondola or coal car. It is also a statement of the defendant that “ a-regular lumber car is a flat car, having brackets upon its sides into which stakes from three to six inches thick are driven, and inside of those the lumber is laid.” It is, of' course, obvioús that the height of the stake or other protection is an important consideration, and must govern the height of the load. The car in question also had brackets on the side, but they were not empty, nor were they designed for stakes. They were to receive the post or bar of the box frame, which was from eighteen inches to two feet high. Above that, of course, the sides of the car furnished no protection.
It appeared, however, that this frame went round the car, at the end as well as at the sides, and that owing to the *466greater length of the timber one end of some of the pieces was necessarily put in the car and the other projected over the end of the car slanting. It also appears that the load was higher then the sides of the car, and was not staked. It could not be staked because no brackets were provided, and the only way the timber was secured from outward force was by nailing some sticks on the inside of the car box, neither fastening them to each other nor overhead. They were not intended as protection, but as guides, and the defendant’s foreman testified that the security relied upon was from the different widths of the timber, and so “ one piece overlapping the other.” We have then a case precisely within the principle of the Bushby case, supra. Here the car above the sides of the box was unprotected, and no means of protection afforded; no brackets within which stakes could be placed; but more than that the car was an unusual one for the purpose to which it was applied, and for which the company furnished it. If it was so managed as to give equivalent security to the employee, it was for the jury to find that out. From' the face of the record it might appear that the dangerous machine was sent upon the track without a thought or care for the safety of those whose duty as employees might bring them to it, or of the traveler whose journey would lead him near its course. The trouble was not in the manner of loading, but in the construction of the car, which made any other manner impossible. As the load rose above the box, every timber had at once leaned towards the ground, and by its own gravity gave effect to each jar or concussion.
It was not from the omission of stakes, but from the absence of brackets to receive them. The defect was structural and the omission corporate. It is enough for us to say that if there was any question, it was one for the jury, and that the court committed no error in refusing to take it from them.
As to the exceptions to the judge’s charge : (1) It was *467not necessary for the court to say that any of the defendant’s servants “ were competent for the work assigned to them.” It was enough to say, as the judge is conceded to have said, that there was “no evidence that they were not competent.” I am unable to discover any ground upon which the defendant could justly call for an affirmative opinion or declaration from the court. (2) The learned counsel for the defendant asked the judge to charge, “ If the jury believe that these cars were carefully inspected, before they started and prior to the accident, by competent inspectors, and the method in which they were loaded and secured, the load was by them adjudged to be a safe and proper one, then the defendant cannot be held guilty of negligence,” and he declined to charge differently than he had already charged. The court had properly referred to the grounds on which the defendant’s liability defended, and was not bound to accept the measure proposed by counsel. It omitted elements of the greatest importance, and, if adopted, would have tended to exclude from the consideration of the jury the corporate negligence of the defendant in omitting, among other things, to furnish proper cars, and would have turned their attention from the master’s acts to those of his servants.
(3) The next point involves a like defective proposition. The defendant asked the learned trial judge to charge the jury, “If the defendant furnished suitable appliances for the loading and unloading of lumber, and employed competent and proper persons to load the cars, and the injury resulted from the neglect or failure of persons so employed to use such appliances or properly load the car, then the plaintiff cannot recover,” and the court responded in the same manner. The proposition is confined to the loading and unloading of the car either by appliance or laborers, and excluded entirely the construction of the car and its capacity to receive loads of this nature. Every fact suggested by the defendant’s proposition might be true, and yet the *468plaintiff recover, because the defendant had not furnished “ a safe, suitable and proper car ” for such a load, or the application and use of such appliances and workmen. A. trial judge must be left to the exercise of some discretion as to the considerations suggested by the evidence and the-language in which he will communicate them to the jury.. He cannot be called upon to turn the case one way or the other upon isolated points of inquiry, and he fails in no duty when he submits in a fair and impartial manner the whole matter in controversy to the jury as the constitutional and final judge of the facts. This was done in the casé before us. I think the general term properly disposed o£ the exceptions.
The judgment appealed from should, therefore, be affirmed.. Judgment reversed, and new trial granted, costs to abide-event.
Finch, Peckham and Gray, JJ. concur; Daneorth,. J. reads for affirmance; Ruger, Ch. J. and Andrews, J* concur.