of the value of $7,000 on April 3, 1899, what was the fair market value of that land and property without the easement appurtenant thereto? To this rule of damages the defendant constantly objected, and insisted that the rule above cited was the proper one to be applied; and to that end he offered to show the value of the hotel property at the time it was conveyed to the plaintiff with the right to use the spring annexed, and also what was its value without the right to use the spring annexed, thus giving the elements from which the value of the whole premises conveyed and of that part to which the title had failed could be ascertained. With these two facts before the court, the rule of damages above cited could be applied; without them, it could not be applied. The court, however, excluded all proof of these facts, and for these errors, in my opinion, the judgment and order appealed from must be reversed.

Judgment and order affirmed on the facts and reversed on the law, and new trial granted, with costs to appellant to abide the writ. All concur.

(96 App. Div. 81.)

NEWTON v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. MASTER AND SERVANT-SAFE APPLIANCES-DUTY OF INSPECTION.

The duty of a railroad company to use reasonable care to protect its employés from injury while engaged on its trains embraces an obligation to use reasonable care in furnishing suitable machinery, keeping it in repair, and inspecting it to discover defects.

2. SAME DELEGATION TO SERVANT.

Failure of a master to exercise reasonable care in inspecting its appliances is negligence, though the inspection is committed to a servant. 3. SAME-INSPECTION OF CARS-DUTY OF BRAKEMAN-CONTRIBUTORY NEGLI

GENCE.

Where a railroad company inspects cars at a division terminus by specially designated servants, a rule requiring brakemen to inspect the train does not impose the duty of inspection on the brakemen equally with the car inspectors, or constitute them fellow servants, and a failure to discover defects which might constitute negligence in the car inspectors does not necessarily establish contributory negligence on the part of the brake

men.

4. SAME-INJURIES TO BRAKEMAN-EVIDENCE-QUESTION FOR JURY.

In an action against a railroad company for personal injuries to a brakeman, caused by the bursting of an air hose, stopping the train, so that a train following it ran into it, evidence considered, and held to justify submission to the jury of the issue of defendant's negligence. Houghton, J., dissenting.

Appeal from Trial Term, Madison County.

Action by Ernest Newton against the New York Central & Hudson River Railroad Company. From a judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals. Affirmed.

The plaintiff, a brakeman in the employ of the defendant, was injured on the 8th day of May, 1900. He was on a freight train, going south on the Hudson River division of the West Shore Railroad, about 30 or 40 miles south of Ravena. He was the rear brakeman, and his principal duty was to pro

and 123 New York State Reporter

tect by flagging the rear end of the train whenever stops were made. When the train was in motion he rode in the caboose. Another freight train was proceeding south, only a short distance behind the train on which the plaintiff was employed. The distance between the two trains as they proceeded south varied from a few car lengths to half a mile. The train on which the plaintiff was employed was very heavy, and a short time before the accident the engine on the rear train "nosed into" the first train and assisted it at a place in the road where there was an upgrade. The train on which plaintiff was employed then went on a short distance ahead of the rear train, but as they came to another upgrade the rear train again approached the first train for the purpose of assisting it as before. Both the trains were running from 6 to 12 miles an hour. The plaintiff was in the cupola of the caboose, and just before the engine of the rear train reached the caboose, or immediately thereafter, one piece of the air hose connecting cars that were about 12 cars' distance abead of the caboose suddenly burst, and the first train came immediately to a standstill, resulting in the plaintiff falling from the cupola to the floor. The engine of the rear train smashed the caboose, and the plaintiff received the injuries for which this action is brought.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Hiscock, Doheny, Williams & Cowie (A. W. Cowie, of counsel), for appellant.

Jones, Townsend & Rudd (E. H. Wells and Thomas S. Jones, of counsel), for respondent.

CHASE, J. The duty of a railroad company to use reasonable care to protect its employés from injury while engaged upon its trains embraces the obligation to use reasonable care in furnishing suitable machinery in the first instance, and to keep it in repair so that their lives may not be exposed to unnecessary peril. The duty of proper inspection for the purpose of discovering defects which may arise from use is a part of the duty owing by the company to its servants. Bailey v. R., W. & O. R. R. Co., 139 N. Y. 302, 34 N. E. 918; Bailey v. D. & H. Canal Co., 27 App. Div. 305, 50 N. Y. Supp. 87.

. Reasonable care involves proper inspection, and negligence in respect of it in such cases as this is the negligence of the master; and none the less so when the inspection is committed to a servant. McGuire v. Bell Telephone Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437.

Inspection to discover whether an appliance is defective is as much a part of the work of furnishing safe appliances as reparation after the defect is discovered. Eaton v. N. Y. C. & H. R. R. Co., 163 N. Y. 391, 57 N. E. 609, 79 Am. St. Rep. 600.

Where a railroad company has assumed to inspect cars at a terminus of a division of its road by servants especially designated for that purpose, a rule of the company requiring brakemen to "look over the train carefully before starting, and know that all couplings, brakes, and running gear are in good order," and "inspect the train as often as possible during the trip," does not impose the duty of inspection upon the brakemen equally with the car inspectors, and constitute them fellow servants, within the rule exempting the master from liability for the negligence of the co-servant; and a fail

ure to discover defects which might constitute negligence in a car inspector does not necessarily establish contributory negligence on the part of a brakeman, but the question is one for the jury. Eaton v. N. Y. C. & H. R. R. Co., supra.

The system of inspection adopted by the defendant at Ravena, so far as it related to the air hose, included a test by the engineer of the train, which was made by putting the air pressure on the pipes and hose, and "lapping the valve," which would show to the engineer whether the pipes or hose were leaking. The system of inspection so adopted by the defendant also included personal examination of the cars and appliances by car inspectors especially designated for the purpose. This duty is described by the foreman. of such inspectors at Ravena as follows:

"I walked over the train on each side, and examined the cars to see what condition they were in. We examined them with our eyes-looked. I didn't feel every different article, to see if it was all right. We looked, and our examination was an examination of everything. We examined hose by looking at them, but not by feeling of them, unless they were in bad condition. I mean by that some difficulty that appeared by looking at them, and some leak."

Notwithstanding the engineer testified that he made the test. from the engine while at Ravena, and did not discover a leak in the air hose, the plaintiff testifies that after he had performed other duties described by him he heard air escaping on the car ahead of the caboose, and put in a new gasket to prevent the leak; that he then heard air escaping from the second car from the caboose, and put in a new air hose there, where he found one broken, and that the train started thereafter before he could get back to the caboose. There is no evidence that plaintiff had any special knowledge of air hose, or that he had ever received any instructions from the defendant, or any person, in regard thereto. It does not appear that the plaintiff had any time or opportunity to look over the train further than he did examine and look it over, or that he would have known that the hose was defective if he had seen it before the accident. It is conceded that if the air hose that burst was not in such a condition when at Ravena as to indicate to a prudent and competent inspector that it was not reasonably safe, or at least that it should have a further and more careful examination, the plaintiff cannot recover. The plaintiff insists that the car inspectors at Ravena wholly omitted to inspect any of the cars or appliances of the train before it started. These were questions of fact for the jury. We think there was sufficient evidence before the jury to sustain their verdict.

The judgment and order should be affirmed, with costs. All concur, except HOUGHTON, J., who dissents.

(95 App. Div. 605.)

and 123 New York State Reporter

VAN WINKLE v. VAN WINKLE et al.

(Supreme Court, Appellate Division, First Department. June 24, 1904.) 1. DEEDS-RECITALS-ESTOPPEL.

A recital in a deed that the grantors therein are each possessed of a certain interest estops the grantors and their privies in blood, law, and estate from asserting otherwise.

2. SAME-CONVEYANCE OF LAND ABUTTING ON HIGHWAY-OWNERSHIP HIGHWAY-CONVEYANCE-PRESUMPTION.

OF

Where one conveys land abutting on a highway, the fee of which is in him, the presumption is against a reservation of the fee, and such presumption is only overcome by express words which show an intent to exclude the highway from the subject-matter of the grant.

3. SAME CONVEYANCE OF HIGHWAY-CONSTRUCTION OF DEED.

The owner of a tract of land owned the fee of a public way, crossing the land, and his heirs gave deeds among themselves, which recited that the parties were proprietors as tenants in common of all the land, and the tracts abutting on the public way were described as "running to and thence along the way." Held, that the fee of the way was conveyed in the deeds of the parcels abutting on the way.

O'Brien, J., dissenting.

Appeal from Trial Term, New York County.

Partition by Mary S. Van Winkle against Grace B. Ruggles and others. From the judgment, defendant Ruggles appeals. Affirmed. See 80 N. Y. Supp. 612.

The parcel is about 248 feet long and 37 feet wide. It is situate in a portion of what was formerly called "Cross Road to Harlem," and is designated "A" on the following map.

The respondents claim that they are the owners of said tract, having ac quired the same by mesne conveyances from Hugh Williamson and the heirs at law of Charles Ward Apthorpe, deceased, while the appellants claim an undivided interest therein as heirs at law of said Apthorpe. Certain issues of fact raised by the pleadings were tried before a jury, where a verdict was rendered in favor of the plaintiff and the respondent Van Winkle. Subsequently the case came on for trial at Special Term, where a judgment was rendered sustaining the claim of the plaintiff and the respondent Van Winkle, and adjudging that the appellants do not own and have no interest in said tract. The appeal is from that judgment, and involves also a review of the trial had before the jury, and an order denying a motion for a new trial.

Argued before HATCH, MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

James A. Deering, for appellants Ruggles and others.
Edward R. Volmer, for appellants Hamilton and others.
Edward Mitchell, for respondent Mary S. Van Winkle.
Henry F. Miller, for respondent Elizabeth M. Van Winkle.

MCLAUGHLIN, J. In and prior to 1785, Charles Ward Apthorpe owned a tract of land of about 200 acres, through which, extending north and south, was a public thoroughfare called the "Bloomingdale Road," from which on the west to the Harlem Commons on the east extended a public way designated "Cross Road to Harlem," or "Apthorpe's Lane," or "Jauncey's Lane." The fee of this cross-road or lane was in Apthorpe, and the parcel of land the title to which is the subject-matter of this litigation is a portion of that roadbed. In 1785, Apthorpe mortgaged all of his land lying east of the Bloomingdale Road to the Marine Society of the City of New York for $2,500, which at the time of his death (May, 1797) remained unpaid. He died intestate, leaving him surviving nine children (among whom were two daughters, Ann and Charlotte, the latter having married John C. Vandenheuvel), and two grandchildren, the issue of a deceased daughter, who had married Hugh Williamson. Subsequent to the death of Apthorpe, the Marine Society commenced an action to foreclose its mortgage, to which the administrator of Apthorpe's estate, and Hugh Williamson, as guardian of the two grandchildren, were made parties. The action resulted in a sale of the land covered by the mortgage by the sheriff of the county of New York, at which Williamson became the purchaser, paying therefor $51,000. After deducting the amount due upon the mortgage, together with the costs and expenses of the sale, the balance was paid to the administrator, and by him distributed among those entitled thereto. In pursuance of the sale, the sheriff, on the 23d of April, 1799, delivered to Williamson a deed, absolute in form, of the entire tract sold.

It is contended by the appellants that the record title to the land in question became vested in Williamson under this deed, but they assert he purchased it as trustee or agent of the Apthorpe heirs, and, in subsequently dealing with it, acted in the same capacity. Upon this issue and another raised by the pleadings a jury trial was had, at the conclusion of which the court directed a verdict that Williamson, in making the purchase, did not act as the agent or trustee of the Apthorpe heirs, nor did he, in subsequently disposing of the land purchased, or any part of it, do so for their benefit. An exception was taken to the ruling, and this is one of the questions sought to be reviewed on the appeal. The conclusion at which we have arrived renders it unnecessary to determine whether the exception was well taken, because if it be assumed that it were, and that Williamson did in fact take title as the representative of or agent for the Apthorpe heirs, it does not aid the appellants, and therefore they could not have been injured by it.