course of business, the manner in which the cars were used, would not a due regard for the safety of the workmen require that the cars be supplied with this or a similar appliance for protection? In Ellis v. Railroad Co., 95 N. Y. 546, plaintiff's intestate was a brakeman, riding in the caboose, when he noticed the approach of a train in the rear; and, fearing a collision, he stepped from the caboose to its front platform. The car immediately in front was a coal-dump, and the bumpers overlapped, so as to be useless. The collision occurred in the rear, and the dump was forced past the bumpers, upon the steps coming in contact with the front part of the caboose, inflicting death. Judge DANFORTH, in delivering the opinion of the court, says: “Here it was the duty of the defendant to provide a car properly fitted, not only with running apparatus, as wheels, stopping apparatus, as a brake, but with buffers of some kind, to protect the car and its servants necessarily or lawfully thereon from the effect of a collision. Ordinary and usual care in the equipment and running of a road requires this last appliance, or some equivalent contrivance, as much as it does either of the others. There was, in effect, no buffer, or anything to take its place, on the car upon which the intestate was employed. Upon the evidence it may be said that its absence was the proximate cause of the injury." In Gottlieb v. Railroad Co., 100 N. Y. 462, 3 N. E. Rep. 344, it was held that the evidence tended strongly to show that the main purpose of bumpers on the ends of freight-cars was for protection of brakemen in the discharge of their duties. It seems quite clear from these authorities that bumpers are a necessary appliance upon any car, for its safety, and also the safety of persons required to be employed upon it. It is quite as necessary that this appliance should be present to prevent cars from coming together as it is for a brake to stop them when upon a down grade; and when, in the course of employment by servants engaged thereon they are or may be required to go between them, to the knowledge of the master, it would seem to be a gross neglect of duty not to provide them. Under the evidence in this case, we think it a fair question for the jury to say whether or not the defendant has discharged the obligations it owed in this regard to plaintiff.

It is, however, said that plaintiff assumed the risk of such injury as he had sustained. It is the rule that upon entering into employment the servant assumes the usual risks and perils of the service, and also such as are incident to the use of machinery and property of the defendant as it then exists, so far as such risks are apparent. Gibson v. Railway Co., 63 N. Y. 452. But this rule is subject to the qualifications that the master must first have performed those duties which the law enjoins upon him. Benzing v. Steinway, 101 N. Y. 551, 552, 5 N. E. Rep. 449; Ellis v. Railroad Co., 95 N. Y. 552. Here, as we have seen, the defendant disregarded its duty in furnishing bumpers to the cars. At least, the question as to whether they did or not should have been submitted to the jury. It is true that when the servant accepts employment, and at that time the machinery and implements are of a certain kind or condition, and the servant knows it, he can make no claim upon the master to furnish another or different machine or safeguards, and if he is injured thereby no liability attaches. Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. Rep. 358. But this rule presupposes knowledge, or opportunities for obtaining which charge the servant with it, equally with the master. In this respect, however, regard must be had to the knowledge of the employe as to the machinery and structures on which he is employed; also, to his capacity and intelligence, and his opportunities for information; and in addition thereto the servant has a right to rely upon the master to protect him from danger and injury. Powers v. Railroad Co., 98 N. Y. 280; Marsh v. Chickering, 101 N. Y. 399, 5 N. E. Rep. 56; Sullivan v. Manufacturing Co., 113 Mass. 396. It was also said by Judge FOLGER in Laning v. Railroad Co., 49 N. Y. 535: "It is at his option, ordinarily, to accept or to re

main in the service or to leave it; and, if he remains without promise of a change, or other like inducement, it is for the jury to say whether or not he voluntarily assumes the risks of defective machinery and of incompetent servants, whereof he has full and equal knowledge." The plaintiff here had been in the employ of the defendant a day and a half; had been but a short time in the country. He could not speak our language, and was, presumably, in a large degree unacquainted with the methods of the defendant in the transaction of its business. He had never seen cars come together as these cars came. There is no proof that his attention had ever been called to the lack of proper buffers, or that he had the slightest knowledge upon the subject, or that he had received any instructions in respect thereto. Under such circumstances, we think it proper to submit both questions here discussed to the jury, for their determination. Fredenburg v. Railroad Co., 114 N. Y. 582, 21 N. E. Rep. 1049.

The defendant further insists that the injuries here sustained were, in any event, the result of the negligence of a co-employe, and also that plaintiff was clearly guilty of contributory negligence. As to the first claim, it may be said-assuming the injury was caused in part by the negligence of a coservant-that, if we are right in holding that it was a question for the jury to consider whether the defendant had discharged its obligation in furnishing suitable machinery and appliances, and whether such failure was the proximate cause of the injury, then the authorities already cited dispose of this claim, as it is held that where the negligence of the master concurs with that of a fellow-servant in producing the injury the master is not thereby excused. The second ground is predicated upon the fact that plaintiff boarded the train while in motion, and the claim is made that this is per se negligence which contributed to the injury. Defendant relies upon Hunter v. Railroad Co., 112 N. Y. 376, 19 N. E. Rep. 820, and Solomon v. Railway Co., 103 N. Y. 443, 9 N. E. Rep. 430. In the first of these cases, plaintiff attempted to board a train moving at the rate of from four to six miles an hour. He was charged as matter of law with a negligent act. In the second, plaintiff was nonsuited for attempting to board an elevated railway train, with the movement of which he was perfectly familiar, after the same had started, and when the gates guarding the platform were partly or wholly closed. It was held that he was properly nonsuited. Judge PECKHAM, in the case first cited, delivering the prevailing opinion of the court, says: "There may, undoubtedly, be circumstances under which an attempt to get on or off a moving train would not be regarded as negligence, as matter of law, and where the question of negligence, under all the circumstances of the case, should be submitted to the jury." 112 N. Y. 376, 19 N. E. Rep. 822, citing Filer v. Railroad Co., 49 N. Y. 47. Under this rule, which we believe is the latest expression of the court of last resort upon this subject, it is not in all cases per se negligence to board or alight from a moving train. As applied to the facts here, we think it a question for the jury. The plaintiff was employed subject to the direction of a foreman. The demands of the business evidently required that the work of loading and unloading should be done with as much rapidity as possible. The order to board the train and the signal for it to move were almost simultaneous acts. The order came from the foreman to "hurry up." The plaintiff started for the train. “The engine had started very slowly at the time the plaintiff began to get up. * * * The train was in motion, * * * was running just nice, ". are the various expressions of the witnesses. From this evidence the jury would be authorized in finding that the train was barely moving when the attempt was made to board it, and that there was but very little if any more danger than when standing. This was the only means furnished by defendant to get aboard, or, at least, it was the usual way in which it was done. then, or be left; and he then had his orders. v.7N.Y.s.no.11-33

He was obliged to get aboard Under similar circumstances it

is said: "The law should not be too exacting." Hawley v. Railroad Co., 82 N. Y. 372. See Terry v. Jewett, 17 Hun, 400. Under all the circumstances, we think it presented a question for the jury to say whether such act was negligent or not. It is not entirely certain, if we assume the act negligent, that such negligence was the cause of, or contributed to, the injury. Plaintiff had placed his hands upon each car to swing himself up. He must have succeeded in placing one leg above the car, as only one was caught. The movement of the train did not, so far as the evidence discloses, interfere with his ability to board the car, or prevent him from so doing. What did interfere with such attempt was the absence of an appliance to prevent the cars from closing up. With such protection there, it leaves nothing to show but that the plaintiff could have safely got on board; so that it may not be said with certainty that this action produced the injury. On the contrary, the jury would be authorized to find that the proximate cause of the accident was the closing of the cars permitted by the absence of the bumpers, and that to this cause the accident was solely due. We are of opinion therefore that the exceptions taken should be sustained and a new trial ordered, with costs to abide the event.

BROWN v. NIAGARA MACHINE Co.

(Superior Court of Buffalo, General Term. November 19, 1889.)

1. JUDGMENT-BY DEFAULT-MUNICIPAL COURT OF Buffalo.

Section 9 of the Buffalo municipal court act (Laws N. Y. 1880, c. 344) provides that, in case defendant fails to answer the complaint, he shall be deemed to have admitted the allegations, and the court, on the filing of the summons and complaint, with proof of due service, shall forthwith enter judgment, without further proof. Held, that where defendant fails to answer, but appears and asks an adjournment, the judge is bound to enter judgment for plaintiff.

2. SAME-OPENING JUDGMENT-APPEARANCE.

Section 16, authorizing the court to open defaults on such terms as may be just, where defendant shall fail to appear on the return-day or on any adjourned day, does not authorize a default to be opened, where defendant appeared on the return-day and asked an adjournment, but failed to answer.

8. SAME JURISDICTION.

Section 16 also provides that when a transcript of a judgment has been taken from the court, and filed in the office of the clerk of Erie county, the superior court of Buffalo may open the default. The practice is the same as in the municipal court, except that a judge of the superior court may at chambers issue an order to show cause, returnable to a special term, where the application is to be heard and determined. Held, that the general term could not entertain the motion.

4. SAME-AFFIDAVIT.

The section also requires defendant to show to the superior court that no applica tion was made to the municipal court. Held, that the moving papers are fatally defective unless they show such fact.

5. SAME.

Nor is defendant entitled to the relief, under Code Civil Proc. § 3064, providing that a default may be opened for manifest injustice, as it also conditions the relief on defendant's failure to appear.

Appeal from municipal court.

Action by Frank H. Brown against the Niagara Machine Company. Judgment by default was entered, and defendant appeals, and moves that the default be opened, and a new trial be granted.

Argued before BECKWITH, C. J., and TITUS and HATCH, JJ.
Frank E. Sickles, for appellant. Clinton B. Gibbs, for respondent.

HATCH, J. The summons, together with a verified complaint setting up an account and demanding judgment, was served upon the defendant herein on April 4, 1889. On the return-day, April 12, 1889, defendant appeared before the municipal court, and asked for an adjournment, which was objected to by plaintiff, and denied by the court; and thereupon, no answer being put in, the plaintiff was awarded judgment by the court for the amount demanded

in the complaint. The defendant thereupon appealed from the judgment, and also served a notice of motion, based upon accompanying affidavits, asking to be relieved from the default, and for an order granting a new trial in the court below. By section 7 of the municipal court act, so callel, (Laws 1880, c. 344,) it is provided that in an action brought therein, arising on contract for the recovery of money only, or upon an account, the plaintiff, at the time of the issuing of the summons, may file with the clerk of the court a written complaint, setting forth, in a plain and concise manner, the facts or items of account constituting the cause of action, specifying the amount due, and for which the plaintiff will demand judgment. The complaint is to be subscribed by the plaintiff or his attorney, and verified as prescribed by the Code of Civil Procedure. The summons and complaint are to be served by delivering defendant copies thereof. Section 8 provides that if defendant appears and answers the complaint such answer must be in writing, subscribed by the defendant or his attorney, and verified like the complaint; then provides what the answer shall contain. Section 9 provides, in case the defendant fails to answer the complaint, he shall be deemed to have admitted the allegations thereof; and the court, upon filing the summons and complaint with proof of due service, shall forthwith enter judgment for the plaintiff for the sum demanded in the complaint, with costs and disbursements, without further proof. The return upon this appeal shows that the summons and complaint, as required by the sections referred to, were properly served; that upon the return-day thereof the defendant appeared and asked for an adjournment; but did not put in an answer as provided by section 8. The plaintiff thereupon became entitled to judgment for the amount demanded, and the judge, by section 9, was bound to render judgment in conformity with the demand of the complaint. This he did. It is not pretended but that the judgment so entered was in all respect regular. It follows that no error was committed in this respect, and the judgment appealed from should therefore stand.

But the defendant applies to the court upon affidavits to set aside this judgment upon the ground that manifest injustice has been done. The act heretofore cited also provides for opening defaults. By section 16 it is provided that the municipal court shall have power to open defaults and set aside judgments upon such terms as may be just, in a case where a defendant shall fail to appear on the return-day of process, or on any adjourned day, when it is shown that manifest injustice has been done, and the defendant satisfactorily excuses his default. It then provides upon what papers the application shall be founded, within what time the motion shall be made, the method of procedure, and the terms upon which the motion will be granted. It further provides that when a transcript of the judgment has been taken from the municipal court, and filed in the office of the clerk of the county of Erie, that this court shall then be vested with power and authority to open the default, and order a new trial upon such terms as may be just. The practice upon such motion is the same as in the municipal court, except that a judge of this court may at chambers issue an order to show cause returnable at a special term of said court, and such application is to be heard and determined at a special term. The defendant must also show to this court that prior to the filing of the transcript no application was made to the municipal court for like relief.

It is thus seen that the primary fact which must exist before the court can take cognizance of a motion to open a default is the non-appearance of the defendant upon the return-day of the summons, or upon any adjourned day. The moving papers herein, as well as the return, show upon their face that the defendant appeared upon the return-day of the summons and asked an adjournment, but put in no answer. The adjournment the court had no power to grant, as the statute is mandatory, directing it to enter judgment on such failure. There is no default such as the statute confers power upon this court

to open, as its power is limited to a failure to appear, while here defendant did appear. It is not, as counsel claims. a default for failure to answer that the court can grant relief, as the language of the statute is, "shall fail to appear on the return-day of process, or on any adjourned day." The defendant has also mistaken the court to which he should apply for relief. The statute does not, in terms, authorize an application for such relief to be made at general term, but, as already seen, expressly directs that the application shall be made upon an order to show cause returnable at special term. This is the proper practice, and should be pursued. The moving papers are also defective, in that they fail to state that no application was made to the municipal court for relief prior to filing the transcript in the county clerk's office. This is an essential fact to appear, as it may be controlling upon the court in the disposition of the application, and the court should always be informed of the action taken by other courts with respect to the subject-matter upon which it is called to act. It is quite clear, therefore, that defendant has not presented a case under this statute entitling him to the relief sought.

Defendant, however, claims that the statute, § 16, is not controlling, and that he is entitled to relief under the general law applicable to justices' courts and appeals therefrom. This claim is based upon the last clause of section 16 of the statute cited, viz.: "The provisions of this section are in addition to the right of appeal now provided by law from judgments obtained in justices' courts in the city of Buffalo." It was undoubtedly the intention of the legislature by the adoption of this clause to save any and all rights that might arise, and to leave intact such remedies as exist in the general law when not inconsistent with the act establishing the municipal court. Without at this time determining whether this motion can be entertained as falling within the provisions of the former statutes, it is a sufficient answer to say that the defendant does not show himself entitled to relief under the general law. The defendant invokes the aid of section 3064, Code Civil Proc.; but this, like the other statute, provides that a default may not be opened for manifest injustice, except in case of "a defendant who failed to appear before the justice, either upon the return of the summons or at the time to which the trial of the action was adjourned." Abundance of authority has firmly established this rule. Armstrong v. Craig, 18 Barb. 387; Tanner v. March, 53 Barb. 438. The same reasons apply here as apply to the statute first cited. It follows that the judgment appealed from should be affirmed, with costs, and the motion to open the default denied. All concur.

REMING et al. v. NEW YORK, L. & W. Ry. Co.

(Superior Court of Buffalo, General Term. November 19, 1889.) RAILROAD COMPANIES-TRACKS IN STREET-Abutting OWNERS-MEASURE OF DAMAGES. Where a railroad company has built a railroad track in a street on which plaintiff's property abuts, permanent depreciation in the value of plaintiff's property cannot be recovered in a common-law action, but he must be limited to a recovery of such temporary damages as have accrued up to the time of the commencement of the action. Following Pond v. Railway Co., 19 N. E. Rep. 487; Hussner v. Railroad Co., 21 N. E. Rep. 1002.

Appeal from trial term.

Argued before TITUS and HATCH, JJ.
Rogers, Locke & Milburn, for appellant.

Day & Parker, for respondents.

TITUS, J. This case comes before us presenting but a single question. On the trial this court held that if the jury should determine that the structure erected by the defendant in and along Water street, in front of the plaintiffs' lands abutting on that street, was permanent in character, the measure of damages would be the depreciation in value of the plaintiffs' property by reason of such structure. This was in accord with the decision of the general