Thompson v. Knickerbocker Ice Co. 18 Wheeler, Terrill v..... 86 Thompson, In re....... 34 Whelan's Estate, In re.. 635 Thompson, In re, two cases. 35 White v. Wood...... 673 Thurber, Boyle v...................... Thorp v. Philbin.............................. 732 White, Smith v..... 855 789 Whitlock, In re.. 683 Tilden v. Green... 584 Whitney v. Hop Bitters Manuf'g Co. 438 Tobey v. City of Hudson. 180 Whitney v. Saxe... 653 Town of Attica, Wrought Iron THE New York Supplement. VOLUME II. FORD V. LAKE SHORE & M. S. R. Co. (Superior Court of Buffalo, General Term. July 13, 1888.) 1 NEGLIGENCE-WHAT CONSTITUTES-WHEN A QUESTION FOR the Jury. Plaintiff's intestate, a switchman in defendant's employ, was killed, while in the discharge of his duty, by the falling of several pieces of timber from defendant's car, which was a gondola, or car with a box from 18 to 24 inches high, without brackets at the sides for stakes to support the lumber, as lumber cars usually have. One end of each piece of lumber was put in the car, the other end projecting over the end-board, the pieces lapping in the middle of the car, which was relied on to bind the load; the pile being from 1 to 2 feet above the top of the box in the shape of a roof. The cars were loaded, by direction of the yard foreman, for the purpose of carrying the lumber about a mile, having to pass over several switches, which would jolt the load. The pieces of timber were 28 feet long by 54 inches thick and 84 inches broad. Witnesses testified that they had seen these cars used, and never heard of any accident before. Defendant had adopted no rules for loading lumber, nor as to the kind of car used; but the method pursued was adopted by the employes, who had used it considerably, and it was considered safe by the foreman. Held, in an action for such death, that the question of negligence, on such facts, was for the jury, and a verdict for plaintiff should not be set aside.1 2. SAME-WHAT CONSTITUTES-INSTRUCTIONS. Upon such evidence, the jury being instructed that it was for them to decide whether defendant had disregarded what would be reasonably suggested to the mind of an ordinarily prudent man in the manner in which the lumber was loaded, and that if the accident was not within the reasonable contemplation of the defendant, and if it happened after defendant had exercised such a degree of prudence and caution to prevent it, it would not be liable, it was not error to refuse to charge that "unless the jury believe that, in the exercise of ordinary care, defendant could have foreseen that this accident would probably occur by loading the cars in the manner in which they did, they must find for the defendant. "1 On exceptions from trial term. Action by Emily Ford, administratrix of John Ford, against the Lake Shore & Michigan Southern Railway Company. The action was brought for alleged negligence on the part of the defendant, causing the death of the plaintiff's husband and intestate, John Ford, who was employed by the defendant as a switchman, by reason of a heavy timber falling upon him, from a car loaded with lumber by the defendant, while he was standing at the switch which he was employed to tend. The cars used on this occasion by the defendant were gondola cars, some of the witnesses calling them coal cars. They were not regular lumber cars, but cars with boxes from eighteen inches See, also, Railroad Co. v. Gower, (Tenn.) 3 S. W. Rep. 824; Scott v. Navigation Co., (Or.) 13 Pac. Rep. 98, and note; Bushby v. Railroad Co., (N. Y.) 14 N. E. Rep. 407. V.2N.Y.s.no.1-1 to two feet high, without brackets on the outside for stakes to hold the lumber, as lumber cars usually have. The cars that had end-boards dropping down were loaded flat; and, where the end-board was stationary, one end of the timber loaded was put in, the other extending over the end-board. The lumber was so piled that one piece lapped the others, with the object of binding the load. The lumber was piled above the top of the boxes a foot and a half to two feet. The lapping of the pieces of timber was relied upon to keep it on. The cars were loaded by the defendant's employes, and the method in which they were loaded was directed by another employe, who was a foreman in the defendant's yard. The lumber was to be drawn about a mile, to the shops of the Buffalo Car Manufacturing Company. There was evidence tending to show that the train would pass over several switches in its route, and that some jolting would be caused. While the train was passing the switch at which the plaintiff's intestate was placed, several pieces of timber fell off from one of the cars upon the switchman, killing him. The lumber so loaded consisted of pieces of timber intended for car-sills, and they were twenty-eight feet in length, five and a quarter inches thick, and eight and a quarter inches wide. Some of the witnesses testified that while ordinarily lumber cars, with stakes, are used, they had seen these gondola cars used, and had heard of no accident before. The defendant's foreman testified that, "for such lumber as that, gondolas are used. When they are making short hauls, we load the pile up, so they shall bind each other, and bind the load in the center. That is the way these cars were loaded." The foreman and assistant foreman testified that they, at the time, examined the loads, and considered the manner of loading safe. The jury found a verdict for $4,000, and the court sent the exceptions to the general term in the first instance. Argued before BECKWITH, C. J., and TITUs, J. James Fraser Gluck, for appellant. Tracy C. Becker, for respondent. BECKWITH, C. J. In the argument presented by the learned counsel for the defendant, he assumes a proposition which, as it seems to me, is not established by the evidence. He assumes that the manner of loading and carrying lumber practiced on the occasion when the plaintiff's intestate lost his life was a mode which had been adopted and tried in a great many instances, and uniformly pursued in the business of the defendant for a long time,-"perhaps four years,”—and that in all that period, and in all such experience, no similar accident had happened; that, on the occasion in question, the defendant loaded and carried the timbers, as it had always uniformly done without a mishap; and consequently that the plaintiff failed to establish any facts upon which, as ground for inference of negligence, the case could be submitted to the jury, the idea being that, where universal experience has established the safety of a thing or process, the plaintiff must prove the existence of some special defect that has crept into the thing, or some special omission of customary usage with respect to the process; and he cites, in support of his position, among other cases, the following decisions of the court of appeals: Dougan v. Transportation Co., 56 N. Y. 1; Loftus v. Ferry Co., 84 N. Y. 455; Burke v. Witherbee, 98 N. Y. 562; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. Rep. 56; Lafflin v. Railroad Co., 106 N. Y. 136, 12 N. E. Rep. 599. In Dougan v. Transportation Co. the form of gangway in question had been in use upon all of the steam-boats on Lake Champlain for years, and there was no proof tending to show that any one had ever before fallen, and gone under the railing overboard. In Loftus v. Ferry Co. 40,000,000 of people annually passed over the defendant's ferries, and until the occurrence in question no accident had happened from any person falling or getting through the space in the guard. In Burke v. Witherbee the judge writing the opinion says: "In the mine alone, cars drawn by a hook must have made several hundred thousand passages without a single accident. What more could any |