Beaudin v. Central Vermont Railroad

We think the ruling of the learned judge was correct. Before the plaintiff could recover in this case, it was incumbent on him to prove some negligent act or omission by the defendant from which the jury could legally find the defendant guilty of negligence. This we think he failed to do. Construing the circumstances proved by the plaintiff in the most favorable light, in support of his contention, as we must on an application to-set aside a nonsuit, (Sherry v. Railroad Co., 104 N. Y. 652, 10 N. E. Rep.. 128.) we fail to see any evidence from which the jury could legally find the defendant guilty of negligence for which a verdict in favor of the plaintiff could be upheld. The cars which the plaintiff was asked to couple were those-in common and general use, and such as were approved by skilled mechanics and railroad men. This was all that could be required of the defendant. It owed the duty to its employes to furnish reasonably safe and suitable machinery and appliances for the performance of its work. It was not required to- ■ furnish the very best that the nature of the employment was capable of, but-simply to furnish such as was reasonably safe and suitable; and this duty is. performed on the part of the employer by the exercise of reasonable care and prudence. Burke v. Witherbee, 98 N. Y. 562; Arnold v. Railroad Co., 6 N. Y. St. Rep. 369. The undisputed evidence is that this build of cars was in, general use, and that no similar accident had happened, and that the cars in question had been examined by an examiner of the defendant, and no defects, existed in them, unless the peculiar construction of all cars of that build rendered them defective. The law does not go the length of holding employers, liable for accidents to their servants under such circumstances; on the contrary, when the servant is furnished reasonably safe and usual appliances for the performance of the work, he assumes the risk of the employment. The-structure and condition of these cars were equally open and accessible to tlie plaintiff and defendant, and each had an equal opportunity to know the protuberance of the sills beyond the body of the cars. If that extension was dangerous, the employe and employer were alike in a position to have discovered and avoided accident in its use. The coupling was done and the acci-dent happened in daylight, and the ends of these sills were in plain view of the plaintiff at the time of the injury. It was his misfortune he did not at the time observe the danger until it was too late; but there is no principle of' law requiring that misfortune to be visited upon the defendant, in the absence of proof of culpable neglect on his part. If w.e are right in holding that the evidence fails to charge the defendant with negligence, then whatever may be said about the propriety of submitting the question of contribu*, tory negligence of the plaintiff is a question of fact for the jury. That question cannot arise. It is true that the plaintiff holds the affirmative, both upon, the question of defendant’s negligence and the plaintiff’s freedom from con-*702tributary negligence; but if he fail to establish the defendant’s negligence, no matter how free he may be from negligence himself, he cannot recover.

It is urged on the part of the plaintiff that the court erred in receiving the conductor’s report, in writing, of the cars which constituted the train by which plaintiff was injured. Before the report was read, it was verified by the evidence of the conductor, who testifies that it was made at the time on the same day when he went out with the train, and contained the numbers of the cars, but he could not remember the numbers when he was sworn without looking at the report. If evidence of the numbers of the cars in the train was material, and for the purpose of identifying the cars in question, as it probably was, then I do not see how this method of proof was not competent. The rule is now well settled that a witness who made a memorandum at the time of the occurrence, and made it correctly, may testify from the same, although he has no recollection of the facts contained in such memorandum. That is substantially what was done in this case. We see no error for which the judgment and order in this action should be reversed. Judgment and order affirmed, with costs. All concur.