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Walter S. Hubbell, for plaintiff.
E C. Sprague, for defendant.

LEWIS, J. Plaintiff was, at the time of the accident, and had been for several years prior thereto, in the employ of the defendant as a locomotive fireman. A part of his duties as such was to shake the grate under the fire in the engine. While performing this duty on the 3d day of October, 1889, he sustained injuries caused, as he claimed, by the negligence of the defendant, and he brought this action to recover his damages. At the close of his evidence he was nonsuited, and his exceptions were directed to be heard in the first instance at the general term. The defendant had two kinds of engines in use at the time. One was known as the “foot-board” engine, and the other as the "stem-winder" engine. Plaintiff had worked upon the former class of engines mainly. The grates in the foot-bcard engines were arranged to be worked in sections, and were easily moved. Plaintiff's usual run was between Rochester and Elmira. He was directed on the morning of the day of the accident to go over his usual route with a stem-winder engine known as "No. 98,” which was the one upon which the accident occurred. He did as directed. The train left Rochester for Elmira abcut 6 o'clock in the morning. It is the contention of the plaintiff that the accident was caused by defects in the grate and the machinery of the engine for which the defendant was responsible. Three defects are complained of. The grate was composed of a number of sections, which were so connected that when the grate was shaken it necessarily moved as one member. There was a shaker bar, which, when not in use, lay down upon its side; when used it was brought up to a perpendicular position, and was worked back and forth crosswise of the engine. There was an arm or projection on each end of the several sections composing the grate. These rested in sockets, and were arranged to be held in position solely by their own weight and that of the coal upon them, there being no cap or other appliance over the ends of the arms or rods to keep them in position when the grate was being shaken. There was an ash pan under the grate to catch and hold the ashes and cinders passing through the grate from the burning coal. These sections of the grate had upon their sides projections or fingers some six inches in length, which, when the grate was manipulated, worked up and down, passing by each other. There was evidence tending to show that after the fire had continued for a considerable time ashes and cinders were liable to accumulate in such quantities in the ash pan under the grate that the fingers or projections mentioned, when the grate was shaken, would occasionally strike or press upon the cinders and ashes below, and thereby lift or force the arms of the grates out of their sockets. This, the evidence showed, had happened quite often with this grate before the time of the accident. If the grate remained in its proper position when shaken, the lever or shaker bar, when it was worked back and forth, would remain so nearly in an upright position that the operator could easily retain his hold upon it; but when the grate was lifted cut of its socket it would

permit the shaker bar to pass so far over as to be nearly or quite at right angles with the body of the person operating it, so that the hands of the fireman were liable to slip off the end of the lever. The fireman's place to stand when shaking the grate of the stem-winder engine is in the gangway between the engine and the tender. There is an opening at each end of this gangway of sufficient size to permit the engineer and fireman to pass through it in getting on and off the engine. On engine 98 the place for the fireman to stand when he was engaged in shaking the grate was covered with sheet iron, which had become very smooth. There was a water tank near this standing place mentioned. It had a defective faucet, out of which water ran on the day in question, and spread over the standing place mentioned, making it slippery. The evidence tended to show that this leaky condition of the tank had existed for several weeks immediately prior to the time of the accident. Great force and power were required to work the grate upon this engine, for the reason that it all moved at one time. There was evidence showing that there were grates in common use upon other locomotives which could be moved in sections, and which required much less power to shake them than it did to shake the grate of engine 98. After the train had passed some 23 miles below Avon on the day in question, plaintiff attempted to shake the grate. He was obliged, in order to move it, to use all his strength. Standing upon the wet floor, he pulled the shaker bar towards himself with such force that the grate was lifted out of its sockets, thus permitting the shaker bar to pass over so far towards plaintiff that his hands slipped off of the lever. His feet at the same time slipped from under him, and he fell back out of the cab, through one of the openings mentioned, upon the ground, and was injured. The train was moving at the time about 30 miles an hour.

Water had been leaking from this faucet a month or more before the time of the accident,-for a sufficient length of time to justify the inference of constructive notice of its condition to the defendant. The plaintiff had not discovered and did not know that it leaked until just before the time of the accident. There was evidence showing that the plaintiff had worked upon this same engine on some prior occasions, but he was not aware of the liability of the grate to be lifted out of its position, nor of this leaky faucet. On the few occasions that he had theretofore shaken such a grate he had been provided with an appliance for lengthening the shaker bar, which facilitated the shaking of the grate. This was not furnished to him on the day of the accident. It is apparent that there was a serious and radical defect in the grate and in the shaking apparatus, which rendered the fireman's hold upon the lever, in the contingency mentioned, insecure. Standing, as he was obliged to, in operating the shaker bar, opposite the openings in the cab heretofore mentioned, he was liable to be precipitated out of the cab in case his hands and feet slipped in the manner stated. This was a danger to be apprehended. The water from the leaky faucet was an important factor in causing the accident. Many of the defendant's stem-winder engines were provided with chains crossing these openings in the cab for the purpose of preventing the employes

from falling out of the engine. "Engine 98 was not provided with these ehains, and that is one of the causes of the plaintiff's complaint. The absence of these chains, however, was plainly visible to the plaintiff, and he must be held, we think, to have assumed the risk attend. ing the use of the engine without them. But not so with regard to the leaky faucet and the defective grate and shaker bar. These defects he was helpless to remedy. He discovered for the first time immediately before the accident the condition of the faucet, and made an ineffectual attempt to repair it. He knew that the grate was worked with great difficulty, but he was not aware of its liability to be lifted out of its place, thereby allowing the shaker bar to pass over so far. It was a part of his duty as fireman to shake the grate from time to time. The movement of the train depended apon his performance of that work. If he neglected it, the engine would not have sufficient draft to make the requisite steam. We are of the opinion that the evidence presented questions of fact which should have been submitted to the jury. They should have been allowed to find whether the defendant had not failed to provide the plaintiff with proper machinery and appliances with which to do the work they required of him, and whether the accident was not the result of defendant's negligence in that regard. Whether the plaintiff was guilty of contributory negligence was also a ques. tion for the jury. Plaintiff's motion for a new trial should prevail, and a new trial should be granted, with costs to abide the event. All concur.

(75 Hun, 347.)

ANDERSON et al. v. STEITZ. (Supreme Court, General Term, Fifth Department. January 18, 1894.) 1. APPEAL-OBJECTIONS NOT RAISED BELOW.

Where a cause of action not stated in the complaint is litigated at the trial without objection, it is too late to raise the objection on appeal. 2. CONTRACTS-Actions-BURDEN OF PROOF.

In an action on a contract which was not performed within the time limited therefor, the burden of proof is on plaintiff to excuse the delay. Appeal from Monroe county court.

Action by William Anderson and another against George W. Steitz. From a judgment in favor of the plaintiffs for $362.46 damages and $64.50 costs, defendant appeals. Reversed, unless plaintiffs remit damages.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
Eugene Van Voorbis, for appellant.
Fanning & Williams, for respondents.

LEWIS, J. One James P. Kane entered into a contract with the defendant to do the carpentry work upon some buildings in the city of Rochester at the agreed price of $7,000. He proceeded with the work under the contract, and during its progress, at the request of the defendant, he did some extra work upon the buildings. He assigned to the plaintiffs his claim against the defendant for work

v.27 n.y.s.no.1-5

upon the buildings, and they brought this action in the Monroe county court, claiming in their complaint to recover $680.27, as a balance due under the contract referred to. The action came on for trial, and at the close of the evidence, at the suggestion of the presiding judge, the jury was excused, and the case was submitted to the court for its decision; and the court thereafter found and decided that the plaintiffs, as such assignees, were entitled to a judgment against the defendant for $326, with interest thereon from June 1, 1890, and a judgment was thereupon entered, and the defendant appealed therefrom to this court.

It appeared upon the trial that Mr. Kane, the contractor, had been paid the entire contract price of $7,000 prior to his making the assignment to the plaintiffs. Without objection by the defendant, the question of extras was litigated upon the trial. The plaintiffs proved that Mr. Kane did extra work upon the houses at the request of the defendant, and the value thereof. This was not the cause of action alleged in the complaint, but, it being tried by the consent of the parties, it is too late, upon appeal, to raise any question as to its regularity. The defendant interposed, as a defense to the action, a claim for damages arising out of a breach of the contract on the part of Kane, which he claimed to set off against the plaintiffs' demand. Judging from the record, it would seem that the case was tried in a rather confused and unsatisfactory manner, and it is somewhat difficult to determine the theory upon which it was finally decided. It was the plaintiffs' contention that the extras were of the value of $700.40. The defendant claimed to have an offset, arising out of the breach of the contract, amount. ing to $857.03. A Mr. Crouch testified that Kane and the defendant had an interview in his presence, after the work was completed, and before the assignment to the plaintiffs; that the parties looked over the items composing the extras, and that it was agreed by them that they amounted, in value, to the sum of $513.40. The trial court found and decided that the parties had such an interview, and that they adjusted the value of such extras at that sum. He further found that the extras were reasonably worth that amount. One item of the damages claimed by the defendant was for demurrage arising out of the failure of Kane to complete his contract within the time agreed upon, amounting to $680.27. The trial court (and we think upon evidence justifying his finding) rejected this item of damages. There was evidence to show that, at the time of the looking over of the accounts as mentioned, the defendant paid Kane the difference between $857.03 and $680.27, being the sum of $176.76. No account seems to have been taken of this payment by the trial court in making his decision. The defendant made other claims for damages arising out of injuries to his house and furniture, caused by defects in the roof of the house. The court found that the defendant was entitled to $354.27 for such damages, which should be set off against the plaintiffs' claim. Some of the reasons given by the trial court for disallowing the claim for demurrage are not very satisfactory. The contract called for the completion of the work by Kane on or before the 1st day of

March, 1890. He concededly failed to complete the contract within that time, but there was evidence tending to excuse his default. In that respect the burden of proof was on the plaintiffs to excuse the delay in completing the work, and not, as the trial court seemed to think, on the defendant; but, as stated, we think there was suffi. cient evidence justifying the conclusion the court came to upon that question. The court having found that the extras were of the value of $513.40, and that that amount had been agreed upon between the parties as their correct value, and having found that the set-off to which the defendant was entitled was $354.27, it would seem to follow that the amount the plaintiffs were entitled to recover was the difference between those two sums, to wit, $159.13, instead of the sum of $326. As found by the court, this latter amount was manifestly arrived at by deducting the defendant's bill of $354.27 from $680.27, that being the amount the court, in another part of its decision, found was due and unpaid for said extras. The findings in that regard are inconsistent, and we fail to find any satisfactory evidence to sustain the latter finding.

The provision against assigning the contract, or any interest in it, to which our attention is called by the appellant's counsel, evidently did not relate to an assignment of a claim for any amount which might be due upon the contract. The purpose of the clause undoubtedly was to prevent the contractor from subletting any part of the work.

There should be a new trial of the action, with costs to abide the event, unless the plaintiffs stipulate to reduce the amount of the damages to $159.13, with interest thereon from June 1, 1890; and if such stipulation be given, and the judgment reduced accordingly, it should be affirmed, but without cost of this appeal to either party. All concure

(75 Hun, 412.)

BURKE v. BURKE. (Supreme Court, General Term, Fifth Department. January 18, 1894.) DIVORCE-EVIDENCE.

The dismissal of a complaint for divorce on the ground of cruel and inhuman treatment will not be disturbed where it appears that frequent quarrels had caused the parties to separate, but it does not appear which party conduced most to bringing about the separation.

Appeal from special term.
Action by Maude M. Burke against John J. A. Burke for divorce.

firmed.
Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
John P. Bowman, for appellant.
Wm. F. Cogswell, for respondent

LEWIS, J. This action was brought for a limited divorce, the plaintiff, in her complaint, charging that the defendant had been guilty of such cruel and inhuman treatment of her and of such con

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