Opinion
May Term, 1903.
George Wallace, for the appellant.
H. Snowden Marshall and Frederick E. Fishel [ George H. Abbott with them on the brief], for the respondent.
Present — GOODRICH, P.J., BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ.
The action is for negligence by servant against master. The plaintiff, a young man, aged nineteen years, was ordered to hold a push stick against the head of a locomotive and the side of a car, so that cars might be shunted off a side track to the main line. He did so. As the car was moving and partly on the main track the stick slipped and the locomotive pushed him against the car and injured him. The court dismissed the complaint at the close of plaintiff's case.
The learned counsel for the appellant argues many propositions on his appeal, but his proof must be considered upon the allegations of his pleading, inasmuch as recovery can only be had upon the cause of action stated. ( Woolsey v. Trustees of Ellenville, 69 Hun, 489, and authorities cited; Coyle v. Third Avenue R.R. Co., 19 Misc. Rep. 345, and authorities cited.) The negligence pleaded is that the method was dangerous and unsuitable, and the appliance unsuitable, improper and unsafe. I find no evidence that the method was dangerous and unsuitable. And although it appears that on some occasions a rope had been used, there is evidence that the method used in this case is very common, and there is not a suggestion of any adequate substitute inherently safer. The remaining question is whether there is any evidence that required the submission of the question of improper appliance to the jury. The plaintiff testifies that the push stick was four or four and a half feet long, four inches in diameter and sawed off straight at either end. The engineer of the locomotive who furnished the stick was called by the plaintiff and testifies that he sawed it off and measured it; that it was of oak, six feet by three inches by four inches, square at the ends, and prepared for the specific purpose. The stick did not break; it slipped off the car, and there is no evidence which warranted the inference that it was improper in material or in form for the use in question. Some point is made that it was of improper length, but it does not appear that if the stick had been longer it would not have slipped, or whether a stick adapted for the use could have been made sufficiently long to permit the plaintiff to escape the peril incident to a slip of a stick under the circumstances. So far as the inherent character of the appliance is concerned, CULLEN, J., in considering a similar appliance put to a similar use, says: "The stick was the simplest possible contrivance, of the adequacy of which the plaintiff was entirely competent to judge." ( Garrison v. McCullough, 28 App. Div. 467; Marsh v. Chickering, 101 N.Y. 396; Cahill v. Hilton, 106 id. 512.) The exceptions to the ruling excluding the questions as to what in the opinion of the witness Bedell would be a safe length for a push stick, were not well taken, as the questions called for an expert's opinion upon the question to be submitted to the jury, and there was nothing in the subject so complicated as to make expert evidence competent. ( Dougherty v. Milliken, 163 N.Y. 527, and authorities cited.)
The judgment and order should be affirmed, with costs.
Judgment unanimously affirmed, with costs.