79 N.Y.S. 220 | N.Y. App. Div. | 1902
This action was brought to recover damages for claimed negligent conduct upon the part of the defendant, resulting in the death of the plaintiff’s intestate.
It appeared upon the trial that the deceased was an employee of the defendant, and upon the 26th day of November, 1901, was engaged as a track repairer, repairing tracks upon the defendant’s structure between Fifty-first and Fifty-second streets.
The work in its performance required the deceased to lean over the rails with his head down between the ties and drive up bolts into a guard rail, which was bolted down from the top. While in this position an elevated train running at a high rate of speed struck the deceased and inflicted injuries from which he died.
The theory of the complaint charges the defendant with negligence in failing to provide proper rules and regulations relative to the operation of trains over that part of the structure whereon its employees were working, and in omitting to warn the deceased of the approach of the oncoming train, and for failure to provide any flag, signals or warning to notify the engineer upon the train of the presence of workmen. Upon the trial proof was given upon the part of the plaintiff tending to establish that no flag had been provided to warn the engineers operating the trains of the presence of workmen upon the track, and that in the course of the employment it was customary when an employee was engaged in the performance of the work which the deceased was then doing to station another person near him to give warning of approaching trains; that in the present case the foreman of the gang in which the deceased was employed stood by the deceased when he commenced
Upon the part of the defendant, the proof tended to establish that it had formulated and promulgated rules sufficient in themselves, if properly observed, to protect the workmen from danger while so employed, and of such rules the gang with which the deceased worked was informed; that sufficient flags and other implements to give warning were also furnished. Proof was also given tending to show that upon the day in question a green flag was put up at a proper place when the gang began to work, and remained up at the time of the happening of the accident. The rules required that- engineers in the operation of trains should come to a full stop when a red flag was exposed and slow up when a green flag was exposed; that it was usual for the protection of the workmen to put up a green flag. The foreman testified that he went with the deceased to the place where he was killed and remained with him for some time, when, his duties calling him elsewhere, he informed the deceased that he was going to leave and that he would have to look out for himself. This was a short time prior to the happening of the accident.
The case was submitted to the jury upon the theory that liability of the defendant could only be based upon a persistent and continued violation of the rules which required observance by the engineers engaged in operating trains of the green flags. The court held that proper rules had been formulated and promulgated and that liability could not be predicated against the defendant for negligence in this regard. Such was the rule announced by the court in denying a motion for a nonsuit, and was several times reiterated in the court’s charge to the jury. The case came to rest, therefore, solely and exclusively upon the fact that the jury might predicate negligence of the defendant, based upon a lack of proper
The effect of this testimony is somewhat obscure, as the first statement of the witness is that the engineers in the operation of the trains did not mind that flag. If by this answer the witness is to be understood as applying failure to observe the flag to the engineers operating trains on the day of the accident and limited to the flag then in position, it is clearly insufficient, as no liability could by any possibility attach to the defendant for the negligence of its servants in failing to obey this particular flag at the particular time. A single instance of neglect, or the neglect to observe the flag for a day, would be insufficient upon which to predicate negligence for failure to correct a habitual neglect of rules by its servants, even though it had direct notice of such fact.
Assuming, however, that the testimony of the witness is to be construed as applying generally to all cases when green flags were displayed, and that they were habitually disregarded, we think the proof is insufficient upon which to base a charge of negligence. The witness was a co-employee of the deceased of the same grade, and was not vested with any authority in regulating or controlling the actions of other servants of the defendant. Consequently,
It is evident that, under the doctrine of that case, the jury were not authorized to find that the defendant had constructive notice of the neglect of its employees in the present case. There is an utter absence of anything in this case showing, or tending to show, that prior to the time of the accident the officers or representatives of the road had knowledge of the neglect of its servants in this particular. There was no direct notice of the existence of any physi
It is said that the defendant was guilty of negligence in failing to station a workman near the deceased to inform him of approaching trains. It is quite clear from the testimony that great care was required to be exercised by the defendant for the protection of the •deceased. His employment was one of extreme danger from oncoming trains. To perform the service required of him caused him to •occupy such a position as rendered it practically impossible for him to inform himself of the approach of a train, and under such circumstances the defendant was charged with extreme care to see that he was properly protected. It may be that negligence could be predicated of the failure of the defendant to station a person near him to give warning during the time he was so employed, and that the foreman was guilty of an act of negligence in not remaining near him during the entire time he was so engaged, and, if called upon to leave, in not procuring some other person to take his place. The difficulty, however, with this contention is that the defendant has not been heard by the jury upon such question: The court ■eliminated all such considerations from the case, and presumably they were not discussed by counsel; therefore, this question has not been considered by them. When the court ruled that the jury -could only find negligence based upon one consideration, it necessarily eliminated all others, and the plaintiff, under such circumstances, cannot be heard to urge that the judgment be sustained, based upon other matters which have never been submitted to the jury and upon which the defendant has not been heard.
It follows that the evidence was insufficient to support a recovery upon the theory upon which the case was submitted to the jury.
Van Brunt, P. j., O’Brien, Ingraham and McLaughlin, JJ.,. concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.