The plaintiff was employed as a switchman in the yard of the. defendant at Middletown. In moving cars in the yard'it was customary' to use a push pole, by which an engine on one track was-enabled to move or push a car on an adjoining track. It was part.
Or would a reasonable inspection after it was in use have discovered that it was faulty, are questions of fact for you to determine from the evidence.” The defendant excepted tó the charge that negligence could be predicated on the failure to inspect the push pole-•during its use. It also asked the court to instruct the jury that it was not the duty of the defendant to inspect it during the course of such use.. This the court refused.
Assuming that a case was made out for the jury to pass upon, provided they found that the stick was defective and insufficient when originally furnished, we think the court erred in instructing the jury that they might find the defendant negligent in failing to subsequently inspect the pole. This pole was the simplest possible appliance; a mere stick of wood. It may be that original defects in it were concealed by the paint of stain, but decay that occurred in its use would be properly first observed by those who used it.. These, sticks also wore out in use.. Others were provided that might be substituted.. It seems to us that this case falls within the principle of Marsh v. Chickering (101 N. Y. 396); Cahill v. Hilton (106 id. 512); Cregan v. Marston (126 id. 568). There is no duty
The judgment and order appealed from should be reversed and a new trial granted, costs to abide event.
All concurred, except Bartlett, J., not sitting.
Judgment and order reversed and new tidal granted, costs to abide the event.