(dissenting.):
In Abel v. Delaware and Hudson Canal Company (103 N. Y., 581), it was said by the court that “the law imposes upon a railroad company the duty to its employees of diligence and care, not only to furnish proper and reasonably safe appliances and machinery, and skillful and careful co-employees, but also to make and promulgate rules, which, if faithfully observed, will give reasonable protection to the employees.”
Prom the evidence in the case before us, we are lead to infer that the defendant had adopted no rules in respect to the operation of a hand-car upon the track in advance of the train in question, but on the contrary had, for a considerable length of time, permitted the hand-car on divers days to leave the city of Syracuse on the track to be occupied by the train in question. “ The train was used as a gravel train, drawing gravel in from Kirkville in the process of the construction of the road.” “ On this train there were five or six gangs of laboring men and trainmen.” “ A hand-car used to go down the road mornings; they were always down there ahead of us; they were always down there; we saw their car down there; I did not see the hand-car or its men start that morning; they always *273started before us; was down at tbe engine house and we started in Catherine street; the engine house is about three-quarters of a mile, I guess, from Catherine street, east.”
It is apparent that it was the custom of the train in question, to move from the station at Syracuse towards Kirkville, a distance of eleven miles, every morning about half past six. If the defendant had had in force a rule forbidding the presence of a hand-car upon the track within reasonable length of time, it is probable the accident in question would not have occurred. If the time excluding the presence of a hand-car, had been that named in the Rule 220 of the Rome, Watertown road, it is probable the accident in question, would not have occurred, although that rule does not say that a hand-car shall not be in advance of a train within a specified time, it does declare that persons operating a hand-car “ must be careful about running hand-cars near the time of any train.” It is not unreasonable to infer that the adoption of such a rule and enforcement of it, would have excluded from the track which was being traversed by the gravel train, the hand-car which caused the accident to the intestate. The Rule 220 just alluded to, prohibits taking “ up a rail within twenty minutes of the time of any passenger train,” if that length of time had been carried into a rule forbidding the presence of a hand-car upon the track where the intestate received his injuries, the collision would have been avoided. Whether or not such a rule should have been adopted for the protection of the employees of the defendant, by the defendant, the jury were not permitted to inquire.
We think, upon the evidence before the court, the trial judge was not warranted in holding, as a matter of law, “ that the rules of the' defendant were proper and sufficient for the protection of its employees, nor in holding that it should not have taken greater precaution by rules or otherwise for their safety.” (Vose v. The Lancashire cmd Yorkshire Railway Co., 2 H. & N., 728; L. S. and M. S. R. R. Co. v. Lavalley, 36 Ohio St., 221; Pittsburgh, Ft. Wayne and Chicago R. R. Co. v. Powers, 74 Ill., 344; Cooper v. Central Railroad of Iowa, 44 Iowa, 134; Slater v. Jewett, 85 N. Y., 61; Sheehan v. N. Y. C. and H. R. R. R. Co., 91 id., 332; Dana v. N. Y. C. and H. R. R. R. Co., 92 id., 639.)
*274"We are also of the opinion that the facts relating to the operation of the train in conjunction with the use of the hand-car, and the absence of any rule or regulation adopted by the defendant to control its movements, should have been submitted to the jury, and that it is a question of fact whether the defendant had been guilty of negligence in that regard. (Abel v. D. and H. C. Co., 103 N. Y., 586.) We do not see any negligence in the defendant in moving the gravel cars by an engine that was pushing them, which gives the plaintiff a right of action, nor are we of the opinion that the absence of check-chains was the probable cause of the accident in question. The absence of the check-chains was visible to the employee, and when he entered the employ of the defendant he assumed the risk and perils incident to the use of the machinery and property of the defendant, as it was without the provisions of check-chains.
In Ladd v. New Bedford Railroad Company (119 Mass., 412), it seems to have been held that any risks arising from the want of check-chains, was an incident to the plaintiff’s employment and knowingly assumed by him, and for which he therefore could maintain no action against the company. It is not like the case in which the cars were temporarily defective in which the master may be liable. It may be said the intestate “ assumed the usual risks and perils of the employment, and such as were incident to the use of this machine (train and cars) in its then condition so far as such risks were apparent.” (Peckham, J., in Hickey v. Taafee, 105 N. Y., 35.)
We think there is no force in the suggestion made at the trial that a different rule appertains to a completed road, and one in the process of construction so far as the duty of master to his servant is concerned. Proper care and thought, and proper rules should be adopted for the protection of the employees, whether the enterprise in which they are engaged is in embryo or whether it is established and completed. (Newell v. Ryan, 40 Hun, 286.) We are of the opinion that the learned trial judge committed an error in holding the case from the jury.
Judgment is revérsed and a new trial ordered, with costs to abide the event.
Judgment affirmed, with costs.