(dissenting):
I am inclined to the opinion that it was a question of fact upon the evidence: First. Whether ordinary care and prudence required the defendant to supply as a part of its engine and tender, suitable check chains, and if such were required by ordinary care and prudence; then, Second. Whether their absence was the proximate cause of the injuries complained of. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 552.) These questions of fact were submitted to the jury and have been found against the defendant. The evidence and the facts and circumstances presented, were sufficient to require a submission to the jury and to uphold their finding of negligence on the part of the defendant. (Burke v. Witherbee, 98 N. Y., 562.) Their verdict should be accepted and judgment affirmed.
Judgment and order reversed and a new trial ordered, with costs to abide the event.