16 N.Y.S. 616 | N.Y. Sup. Ct. | 1891
This is an action for the recovery of damages for injuries caused by the negligence of the defendant. The plaintiff was in the service of the Central Hew England & Western Railroad Company, as an engineer of a freight train running between Maybrook Junction and Campbell Hall, a single-track railroad, operated under staff rules, which were that no train would be run over the road between Maybrook and Campbell Hall without the train staff marked “Maybrook and Campbell Hall,” or a substitute train staff ticket. Enginemen of west-bound trains could not leave Maybrook station without the train staff, or a substitute train staff ticket, to be furnished to them by the operator at Maybrook. Enginemen of east-bound trains were
At the close of the testimony upon the trial the defendant moved for a non-suit, on the ground of contributory negligence of the plaintiff, and the specification was that at the time of the accident he was running without either a head-light or a white light in front of his train. The motion was based on the rules of the plaintiff’s railroad company requiring each train running-after sunset, or in an obscure day, to display the head-light in front, and two or more red lights in the rear, and, when a train is-being pushed, to display a white light in front of the leading ear at night, and when the train is obscured by fog. The plaintiff was running his engine backwards, with its head towards the train, and its tender ahead, with a red light fastened on the tail casting behind the tank, sometimes called the “bumper;” and, as that was not a compliance with the rule of the company, it is claimed by the appellant to have been negligence as a matter of law, which entitled the defendant to-a dismissal of the plaintiff’s complaint. As the doctrine is finally settled in this state, the failure to perform a duty imposed by statute or by rule may be shown in an action like this, but it is not conclusive evidence of negligence
But the plaintiff was required to justify another portion of his conduct. When the approaching engine was discovered he jumped from his engine, and received the injuries of which he complains, and it becam'e necessary for him to satisfy the jury that he was placed in a position of danger so apparent, imminent, and serious as to compel him to make a sudden choice, in the presence of an apparently great and impending peril, between the hazard of a dangerous leap from his engine and a collision between the two engines, and that his conduct was dictated by ordinary prudence, and was not the result of unreasonable alarm. The charge of the judge upon this question left the jury to determine whether the danger was of a character to justify the plaintiff in taking the course he did, and whether his course was such as a person of ordinary prudence, placed in the same jeopardy, might have pursued. Neither party requested more specific instruction upon the point, and, so far as it went, it was correct. A proper addition would have been that the fact that the two engines did not collide was insufficient to convict the plaintiff of imprudence-in making the jump from his engine. He was compelled to act upon the probabilities as they appeared at the time and to make a sudden choice. The engines were only about 200 feet apart when the plaintiff jumped, and he was the last to leave, the conductor and fireman having left before him. When the engines stopped, they were within 4 or 5 feet of each other. We think the facts and surrounding circumstances fully justified the jury in finding the plaintiff free from fault.
Upon the question of the defendant’s negligence,, the jury was restricted to the conduct of the engineer of the defendant after he received, permission to flag his engine from Campbell Hall to Maybrook, and the case endured the
Another question remains for examination. The defendant desired the judge to charge that the request of the defendant’s engineer to run his engine from Campbell Hall to Maybrook for water over the road of the plaintiff’s employer is not the request of the defendant, and, unless the jury can find from the evidence that the defendant’s engine was put upon the tracks of the Central Hew England & Western Eailroad at the request, or with the knowledge and consent, of the defendant, you cannot find in favor of the plaintiff. In response to this request, the judge left it to the jury to determine whether, under the circumstances, it was within the scope of the authority of the engineer to make application to run his engine to Maybrook for water, and the defendant excepted. We think it was entirely competent for the trial judge to charge the jury that the engineer had the power to make the application. The facts were undisputed. The engineer was placed in charge of the engine, and its entire control was vested in him, and it was to be operated by him. Its operation was the end required, and all the means essential to the successful accomplishment of that end were authorized. Water is necessary for the creation of steam, and provision is made for carrying the same in a tank accompanying the engine, and, when it becomes diminished or exhausted, it must be replenished, or the engine must stop. Therefore, under the circumstances in which the defendant’s engineer was placed, it became necessary for him to obtain water for his engine, and within the principle stated he possessed the power to adopt the most available means for its acquisition. There is no claim that he could have obtained water at Campbell Hall, or at any place nearer or easier than Maybrook. Whether, therefore, the question be one of law or of fact, it was properly solved by the jury, and there is no error upon that subject requiring a reversal of the judgment. The exceptions to the charge respecting the negligence of fellow-servants presents no error, and we find none in the record. The judgment and order denying the motion for a new trial should be aflirmed, with costs. All concur.