137 N.Y.S. 273 | N.Y. App. Div. | 1912
Plaintiff’s decedent was sent to flag a work train. He sat down on the end of a tie, buried his face in his hands, and while apparently asleep was killed by a train he should have signaled. The plaintiff has recovered upon the theory that the engineer, entitled to be discovered and warned by the flagman, in the exercise of proper care should have himself discovered the delinquent flagman and saved him from injury. The case presents, the novel feature of the man fco be notified of danger, and so protected therefrom, held ultimately negligent for failure to discover and protect the signalman asleep. It would be a long and valueless task fco discuss the authorities that under so many varieties of fact have dealt with the duty of'the locomotive driver to keep a lookout, and the result of his neglect to do so. The industry of the learned counsel for the appellant has brought many of them in view. And yet the law is not peculiar to railway companies, but rather is common to all persons exposed in the usual course of their business to collision with others, and simply is that they shall use due care to discover and to avoid what may be reasonably expected in the way or in the course of the work, and even in good faith and earnestly to use available methods to save or to investigate injury to those discovered in peril by whosesoever fault. The engineer’s duty is to keep a watch ahead, maybe for the flagman, and especially for him where circumstances like those present indicate that he is probably on duty. The flagman’s vital duty is to discover the train and to notify the engineer. There is no greater occasion for alertness and constant fidelity than that, where one man with his alarm flag stands between an approaching train and an obstructed track, but all his duty fully done goes for naught unless the engineer, attentive, sees and obeys the signal. But if one of the two, thus bound to mutual lookout, is injured by the neglect of the other, the common inquiry is whether the injured man contributed to the injury. Beyond that may be the final inquiry, did the one discovering the other’s peril make fair use of his opportunity to do him least injury? That question essentially has nothing to do with the previous conduct of either party. If A, at fault or not at fault, finds B in peril by
It is going beyond all precedents and principles to. hold that
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Hirschberg, Burr, Woodward and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.