THIRD DEPARTMENT, DECEMBER TERM, 1874. pass on this question in this case, as it must be assumed on the verdict that the act of the baggage-man was neither willful nor malicious It is also insisted that the court erred in its remarks to the jury, in relation to their rendering "such a verdict as a sound public sentiment would approve and sustain." If this could be regarded as a direction to the jury to consult public sentiment, and be governed by it in arriving at their verdict, it could not be sustained. But such is not the meaning of the remark, as is evident when it is read in connection with the preceding sentences in the charge. It was made in reference to the subject of damages, and in the interest of the defendant. It was the conclusion of some deprecatory allusions to the prevalent prejudice and hostility to railroads, followed by an expression of confidence that the jury would not allow their judgments to be warped by such prejudice or hostility, but would render a verdict which "should be the unbiassed and deliberate expression of their honest judgments; such a verdict as a sound public sentiment would approve and sustain." The remark was in no wise calculated to injure or prejudice the defendant. The motion for a new trial must be denied, and judgment ordered on the verdict, with costs. LANDON, J., concurred. BOCKES, P. J., dissented from the conclusion arrived at in the discussion of the last proposition of the opinion. New trial denied, and judgment ordered on the verdict, with costs. 3 338 62 173 BENJAMIN SALTERS, ADMINISTRATOR, ETC., PLAINTIFF, v. THE Railroad Common and target switches-duties to employes and passengers —Ecidence of acts done by railroad company after accident. A railroad company is under no obligation to its employes to provide its tracks with target switches; a common switch is adequate and sufficient. A railroad company is bound to place its employes under no risk from imperfect or inadequate machinery or other material means or appliances, known, or which but for their negligence would have been known to them. THIRD DEPARTMENT, DECEMBER TERM, 1874. A railroad company is not bound to employ mechanical appliances to protect one servant from injuries liable to result from the negligence of another. The rule is otherwise as to passengers. The admission of evidence to show that after an accident, a railroad company changed the character of its switch, is error. MOTION for a new trial, on exceptions ordered to be heard in first instance at General Term. The action was brought to recover damages for the death of the plaintiff's intestate, who was killed while employed as fireman on a locomotive of the defendant, which ran into an open frame switch, and was overturned. The cause was tried at the Albany Circuit, and a verdict was rendered in favor of the plaintiff for $3,000. The defendant moved for a new trial, which was refused, and the exceptions were ordered to be first heard at the General Term. Amasa J. Parker, for the plaintiff. Henry Smith, for the defendant. LANDON, J.: The switch was not open in consequence of any defect in its construction, or for want of proper repair. It was an adequate and sufficient switch, so far as the adjustment of the tracks to each other was concerned, and that seems to be the chief office of a switch. It was a common switch. This court held in Piper v. N. Y. Central & H. R. Railroad Co.,* that a common switch is as safe as any other, if properly cared for. The target switch differs from it in having a longer handle, to which signals are attached, which indicate how the tracks are adjusted. The plaintiff claims that the defendants were negligent in not having provided a target switch. The defendants' counsel requested the court to charge the jury that the defendants were not liable for not getting such a switch. "By the court: I decline in that form; I leave it to the jury to say whether the company provided suitable signals." The court also charged, that if more suitable signals (referring to the target switch) could have been seen, then the defendants were liable. The question is directly presented, whether the defendants were properly found guilty of negligence because * 1 N. Y. S. C. Rep., 290, THIRD DEPARTMENT, DECEMBER TERM, 1874. they did not provide a target switch. We think they were not. The defendants, as masters, owed to the deceased, as their servant, the duty to place him under no risks from imperfect or inadequate machinery, or other material means or appliances, known, or which but for their negligence would have been known to them. * The question here presented, is, whether the switch here employed was an adequate machine or appliance; or, to use the language of the court in Ford v. Fitchburgh Railroad Co., "a suitable instrumentality." As before remarked, it was, if properly cared for. Nearly every mechanical appliance needs proper care to make it both safe and suitable. The absence of proper care is not a defect in the machine or appliance, but is the negligence of the party whose duty it is to bestow it. Grant that the presence of a target would indicate to one servant that his co-servant was negligent, and thus insure the safety of the former; to require its presence as a matter of right, is to require that the master shall, by mechanical appliances, exempt one servant from the negligence of another. We are cited to no case which goes to this length. It does not seem to be in harmony with the rule which subjects one servant to the risk of the exceptional negligence of another. In the case of passengers, railroad companies are bound to avail themselves of all new inventions and improvements known to them, which will contribute materially to the safety of their passengers, whenever the utility of such improvements has been thoroughly tested and demonstrated, and the adoption of which is within their power, so as to be reasonably practicable. Doubtless, the passenger has the right to demand such mechanical appliances as are known, by sufficient test and experience, to indicate the negligence of a servant, and obviate its consequences. But the passenger has the right to demand exemption from risk on account of the negligence of the servant, and may, therefore, demand such suitable mechanical appliances as shall suffice to make good his exemption. But the servant undertakes his employment, relying upon the fact that the appliances are safe, if carefully used; and he *Laning v. New York C. Railroad Co., 49 N. Y., 521. †A. L. Jour., vol. 10, No. 22; to appear in 110 Mass. Hegeman v. Western Railroad Corporation, 13 N. Y., 9; Smith v. New York & Harlem Railroad Co., 19 id., 127. THIRD DEPARTment, DecembER TERM, 1874. knows that their careful use depends upon himself and his fellow servants who may be assigned to operate and guard them. In consideration of his wages he takes the risk that his fellows will do their duty as he agrees to do his. Clearly, this fireman came to his death in consequence of the management of the switch, not in consequence of the switch itself. Of that management, so far as it was chargeable to his co-employe, he voluntarily incurred the risk. He placed no dependence upon the target, for he knew none was there. The plaintiff was permitted to give evidence to the effect that, after the accident, the defendants substituted a target switch for the common one. Within the ruling in Dongan v. Champlain Tr. Co.,* this seems to be error. Whether the defendants were negligent, was a question to be decided upon the facts as they existed at the time of the injury. What the defendants did afterward was immaterial, unless their acts could be construed as equivalent to their declaration that they were negligent at the time of the injury. But the question appears to be settled by authority, and not oper for discussion in this court. As there must be a new trial for the reasons assigned, it is not necessary to discuss the question whether the management of the switch, under the circumstances, could be considered so far the act of the defendants, as masters, as to relieve the switchman from the charge of negligence. The verdict must be set aside and a new trial granted. Present-BOCKES, P. J., LANDON and COUNTRYMAN, JJ. Judgment reversed and new trial granted, costs to abide the event. * 56 N. Y. 3 342 127a 164 THIRD DEPARTMENT, DECEMBER TERM, 1874. JAMES T. MCCOMBS, RESPONDENT, v. WILLIAM C. BECKER, Landlord and tenant—what agreement between, transfers title to crops - Sale on execution-presumption as to levy. An agreement made by a tenant "to take good care of the cows," and in case the hay raised upon the demised farm should fail to be sufficient to winter them, his landlord should supply the deficiency at the rate of three dollars per ton, and if there should be a surplus the landlord should have it and pay the tenant three dollars per ton for it, does not place the title to the hay in the landlord. The presumption is, that a sheriff who sells property on execution has previously made a levy. APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought for the alleged conversion by the defendant of about seventeen tons of hay, the property of the plaintiff. The defendant rented to one Burnham a farm under an agreement, by the provisions of which, among other things, the defendant was to furnish certain cows, etc., and "said Becker is to have all the butter and cheese manufactured on said farm; also, to hold all of the grain raised on said farm, or enough sufficient to pay all rent; said Burnham is to work all the milk of said forty cows on the farm into butter and cheese; to take possession of said farm on the 1st day of March, 1872, and have it one year, or to the 1st day of March, 1873; is to take good care of said cows, and to deliver up said cows and farm to said Becker, on the 1st day of March, 1873; said cows are to be in good condition and in good flesh; said Becker is to furnish, on the first day of March, twenty-eight of said cows, and on or before the 1st day of April, 1872, twelve more good cows; Burnham is to pay to Becker three dollars per ton for all hay that is required to winter, of 1872 and 1873, and to feed through the spring of 1873 to the fifteenth day of May, the said forty cows and one team of horses, after the 1st of March, 1873, till 1st of June, 1873, and also one more team through the month of May, 1873, provided there is a deficiency of hay on said farm, and Becker is to pay, in case more than hay enough to |