Lead Opinion

Putnam, J.:

The evidence produced by the plaintiffs to show that the brake on car. Ho. 2.7, on which the decedent was the motorman at the time of" *205the accident, was defective, was scarcely sufficient to sustain their contention. They were only able to show that, about a month before the injury to Wind over, the brake worked hard; were it otherwise, however, it appeared that the deceased had been in the employ of the defendant as a motorman for several years. If the brake worked hard or was defective, he must have known it. He, therefore, having, with such knowledge of the defect, taken the responsibility of working on the car, and assumed the risk arising therefrom, no liability on account of the brake was incurred by the defendant. (Powers et al. v. The N. Y., L. E. & W. R. R. Co., 98 N. Y. 274; Crown v. Orr et al., 140 id. 450; Monaghan v. N. Y. Central & H. R. R. R. Co., 45 Hun, 113; Odell v. Same, 120 N. Y. 323; Freeman v. The Glens Falls Paper Mill Co., 70 Hun, 530; affd., 142 N. Y. 639.)

Hence, the only question in the case that requires consideration is that arising from the exclusion of the evidence offered by the plaintiffs. The trial court refused to allow the jdaintiffs to show that the corporation failed . to supply a “ sandman ” for cars running on Hoosick street, stating that he would exclude the matter of the “ sandman ” on the ground that, if one was not provided by the defendant, Windover must have known it, and,' therefore, he assumed the risk resulting from the absence of such an employee.

As the trial court excluded all testimony on that subject, of course we cannot know what evidence the plaintiff would have produced if permitted.

It was the duty of the defendant to supply the car on which the deceased was employed as a motorman with sufficient and propel help and with proper appliances and instrumentalities to safely operate it. (Flike v. Boston & A. R. R. Co., 53 N. Y. 549; Booth v. Same, 73 id. 38; Whittaker v. D. & H. C. Co., 126 id. 544; Cuppins v. The N. Y. C. & H. R. R. R. Co., 122 id. 557.)

The decedent, as the employee' of the defendant in the management of the car, had the right to rely upon the assumption that the defendant had performed this ffiuty. He did not in the first instance assume risks resulting from the failure of the corporation to do so. As Andrews, J., remarked in Booth v. Boston & Albany. R. R. Co. (supra, 40): “ The rule that the servant takes risks of *206the .service 4 supposes,’ says Lord Cranworth, 4 that the master has secured proper servants and -proper machinery for the conduct of the work.’ . (Bartonshill Coal Company v. Reid, 3 Macq. 275).” If, however, in the service of the defendant, Windover discovered that it had failed to furnish proper machinery and appliances for the car or sufficient- help, and after such discovery voluntarily continued in -the employ of the corporation, under the authorities above referred to, he must be deemed to have elected to have assumed the risks resulting from the' neglect of the. defendant to perform its duty. Thus it lias been held, that a servant of á railroad company cannot recover for injuries resulting from the unskillfulness of his fellow-servant negligently employed by the corporation, if he voluntarily remained in. its service with knowledge of such fact. (Haskin v. The N. Y. C. & H. R. R. R. Co., 65 Barb. 129; affd., 56 N. Y. 608; Laning v. The N. Y. C. R. R. Co., 49. N. Y. 521.) So in this case,, the decedent, having elected to -remain in the service of the defendent with .knowledge of the defective brake, cannot recover from the corporation for an injury resulting therefrom. The risk from the brake was apparent and must have been known to and' voluntarily assumed by him..

But we are' unable to concur- with the view taken by the trial court,, that the decedent assumed' the risk resulting from the- defendant’s neglect to employ a man to place sand on its tracks, in the absence of any. evidence or facts indicating such an assumption: We think the judge should have received the evidence offered by the plaintiffs,, and afterwards have -determined the question^ he ■assumed to decide in advance, if the facts proved by the plaintiffs should have shown that a 44 sandman ” was required for cars of - the. •defendant on Hoosiclc street and that it was negligent in not furbishing such an employee. ■ ' ■ ■ .

• As we have- already said, it was- the duty of the corporation to supply the car-with suitable machinery, appliances and help-'with which to manage-it; and the deceased as an employee in the -first instance could properly assume that it had performed this duty. He was not required to make a critical examination of those appliances, or to entertain doubts as to the cars- being properly, equipped. He knew that the speed of the car could be regulated in. two ways, by the brake and by, .reversing the-.power. He could *207properly assume, unless lie knew otherwise, that those means provided by the defendant were -sufficient.

There was no evidence produced that he knew that a “ sandman ” was required ; it was not proved that the car had ever run away with him, or that he knew that it or any other of defendant’s cars Lad run away before the accident.

We think the learned trial court was mistaken in assuming as a fact, in advance of the'evidence offered, or which might have been produced, that Windover assumed the risk arising from the failure of the defendant to employ a “ sandman.” Had the court received such evidence,, a state of facts might have appeared showing such an assumption, or, on the contrary, the circumstances might have indicated that the deceased, without any knowledge of the necessity of “ a sandman,” and believing that the defendant, as it was its duty to, had furnished the required instrumentalities to check the speed of the car, had not assumed a risk of which he was ignorant, or the evidence, if received, might have raised a question of fact for the jury as to such assumption. (Laning v. N. Y. C. R. R. Co., supra.)

In 14 American and English Encyclopaedia of Law, 843, it is said : “A servant does not, of course, assume the risk of any dangers arising from unsafe or defective methods, surroundings, machinery or other instrumentalities, unless lie has, or may be presumed to have, knowledge or notice thereof.” In a note on the next page of the same volume it is also stated : “And it may be observed in this connection, that it is one thing to be aware of' defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing to know or appreciate the risks resulting or which may follow from such defects. The mere fact that the servant knows the defects may not charge him with contributory negligence, or the assumption of the risks growing out of them. The question is, did-he know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects, existed. (Cook v. St. Paul, etc., R. Co., 34 Minn. 45; Russell v. Minn., etc., R. Co., 32 Minn. 230.) ”

We think the above quotations,, which are supported by many authorities in the work in question, state the correct principle applicable to such a case as this.

*208Windover did not assume the risk in question, unless he knew that the power to reverse and the brake were insufficient to prevent the car from running away, and that a “ sandman ” wras required. It could not be properly assumed as a fact, in the absence of any evidence in that regard, that he did know. In the absence of such knowledge, the risk arising from the absence of the “ sandman ” was not an apparent one. In Haskin v. The N. Y. C. & H. R. R. R. Co. (supra) it appeared that the deceased knew of the unskillfulness of his co-employee, and, after such knowledge, voluntarily-remained in the service of the corporation.

We think, therefore, the court below erred in disposing of the case in advance of the evidence that might be produced, and in declining to receive the testimony offered by the plaintiffs.

The question arising in the case as to the contributory negligence of the' deceased was, we think, under the facts shown, clearly for the jury.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Landou, J., dissenting.

Dissenting Opinion

Landon, J. (dissenting):

The absence of a sandman was immaterial, because it was not shown that his presence was necessary. It was shown that the car was equipped with a distributing sand box, from which the motorman could apply sand to the tracks, and defendant’s counsel did not offer to show that a sandman was also necessary. It would not be proper to allow the jury to infer the necessity of his presence in the absence-of evidence tending to show it. Experience must have demonstrated whether both box and man are necessary in such cases, and evidence of its teaching must be obtainable. The jury should hot be permitted to make a rule of law to suit themselves, or find a fact without evidence. (Cumming v. Brooklyn Gity Railroad Co., 104 N. Y. 669.)

I doubt, therefore, whether we should reverse.

Judgment reversed, new trial granted, costs to abide the event.