43 N.Y.S. 751 | N.Y. App. Div. | 1897
This action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate, Charles H. Niles. The deceased had been in the employ of the defendant for thirty-eight years, in different capacities, and at the time of his death was the conductor of a work train. February 9, 1895, was a stormy day, and had been preceded by two or three very stormy, snowy days. The snow storm was accompanied by high winds, and the air was filled with blustering, blowing and falling snow, making drifts on the tracks. Men were engaged east of Oneida in clearing the tracks of the snow, and Niles was directed to take the ■ work train and proceed east to Rome and pick up the men who were down there at work.
The Niles train left ’Oneida at four-thirty p. m., and* the fast freight train passed through Oneida at four-thirty-four and one-half p. m., and passed under the tower just éast of Oneida at four-thirty-five- and ■ one-half. The engine drawing the Niles train was run backward, that is, the tender was in advance of the engine, and it was so greatly impeded by the heavy snow drifts that it was obliged to slow up several times. The train became stalled in a snow drift somewhere about 100 feet east of the¡Yérona block signal towér
When the fast freight reached the Oneida tower, the signal was at “ danger,” indicating that there was a train ahead in the block, but the towerman motioned to the engineer to proceed, and, as the engine passed under the tower, he attempted to throw a “ caution card ” to the engineer from the tower, but the wind blew it away and he failed to get it. But he says that he understood it was a card authorizing him to proceed into the block, with the understanding that there was a train ahead of him, and that he must run to the next signal with the train under complete control, expecting to overtake the preceding train.
Klein, the engineer of the freight train,- says he had no idea how fast they were running. “ The snow was very deep and we couldn’t go very slow; we had to go so as to keep our train going; we went between those two towers not over fifteen or sixteen miles an hour; it might have been a little less or it might have been a little more.” That when he passed the semaphore or station signal, he reduced the speed to about ten miles an hour, as he knew he was within 1,200 feet or so of the tower. lie states that he could stop the train in between 500 and 600 feet; but again he says that, if Niles had sent a flagman back, it would have been necessary to go back between 600 and 700 feet.. Being asked why he failed to stop at the tower, but went through it at that rate of speed, he answered : “At the time we approached Verona, the snow was quite heavy there, and, to come right down to a full stop * "x" * before we come to the tower, we would have got stalled; we never would have got out, very likely; so we run through the tower.” According to his testimony, the train reached the tower at four-forty-five and one-half p. m., making the run of three and eighty-one-one-hundredths miles in eleven minutes, or at the rate of about twenty-three miles an hour.
In order to avoid the imputation of contributory negligence on the part of Niles in not obeying the requirements of rule 95, which provides that the brakeman shall go back instantly when a train is stopped, and that the conductors will be held responsible for the enforcement of this rule, the respondent’s counsel contends that the
■ because it was out of good condition, and that this was a contributing cause of the accident. But upon the respondent’s theory of the case, based upon some evidence to. support it, we-fail to perceive any evidence for the consideration of the jury upon which it woidd have been warranted in finding as a matter of fact (if it really did so find) that Lorenz had worked the lever. T)efqre the freight train had reached the semaphore. Lorenz testified that, after he heard the work train coming, he walked from the shanty south- of track No. 1 to track No. 4, a distance of from 50 to 100 feet, and, after he saw it had come to a standstill, he went and threw the lever, which. stood 120 feet east of the crossing. Sherman corroborated him as to doing this. Klein, plaintiff’s witness, testified that, based upon his own experience, a man ought to walk from 125 feet to 140 feet' per minute, Under the conditions as they were on this day.
Now, if the train came upon them so quickly that Rahn was unable to get out of the car with his flag — he acting with due promptness in the emergency—is it probable that Lorenz had reached the lever and worked it before the freight train had reached the semaphore, some 1,600 feet distant from the point of collision ? It would seem that a minute or more elapsed before Lorenz reached the semaphore. Where was the freight train then ? If we take Rahn’s testimony it was right upon them and within the semaphore, and, if that be true, it was immaterial to the case that the semaphore was out of condition.
This semaphore, or station signal, was 1,500 feet west of the tower, but was no part of the block system of signals, and had reference only, or principally, to the use of the tracks of the station.
Now, if we assume that the semaphore was 1,500 feet west of the tower, and 1,600 feet west of the work train, and the freight was running ten miles an hour, and a minute elapsed between the stoppage of the work train and the time of collision, and it took Lorenz a minute to reach the lever, then the freight train must have been 880 feet distant from the point of collision, or 720 feet within the semaphore when it was operated. If. the rate was fifteen miles per hour it was 1,320 feet distant, or 280 feet within the semaphore.
Without undertaking to raise and solve further problems it is sufficient to say that, if we accept the respondent’s theory of the case, the jury must have acted upon the veriest surmise or conjecture in determining that, as a matter of fact, the freight train passed the semaphore after Lorenz had attempted to place it at “ danger.” And it is very difficult for the court to say that the jury adopted the respondent’s theory and founded its verdict upon evidence of so vague, uncertain and unsatisfactory a character. If negligence is to be imputed to the company in not inspecting and maintaining the semaphore in proper order and condition, and this was a proximate cause of the injury, it is incumbent upon the
If, on the other hand, the evidence given by the appellant’s witnesses is to be accepted as true, then it appears that Niles’ train had been stalled' from four to seven minutes before it was struck, and he was chargeable with a violation of the rules and imputable with negligence. Upon all of the evidence taken together we cannot say that thé jury was not justified in disbelieving the witnesses, or any of them, that the work train had been stalled even four minutes. The work train had departed but .five minutes ahead, but the engineer must (we presume) have acted upon the assumption that the time was ten minutes and ran his train accordingly. To traverse about four miles in eleven minutes required a .speed of about twenty-three miles per hour, and the freight must have been running considerably faster than this work train, although the engineer of the latter says he thought he was running at from twenty-five to thirty miles per hour, and was obliged to slow up once or twice on account of the snow drifts. •
If, as it it claimed, the signalman at the Oneida tower allowed the freight train to' follow the work train five minutes after the latter had passed through, that was an act in direct violation of the rules prescribed. By the “ caution card,” which the engineer understood, he was authorized to proceed into the block, running cautiously and with his train under complete control, with the expectation of overtaking the preceding train in the block. He was not authorized, but, on the contrary, was expressly prohibited by the rules from passing, under any circumstances, the next signal at “ danger,” except in specified cases not required to be mentioned.
Since the Verona.block was closed to the freight train, and the collision there occurred, it would seem to be a matter of no great importance in determining the liability of the company that ten minutes was not allowed to elapse between the departure of the trains, for the train following was precluded from passing the tower, and especially at the rate of speed it was going. If the ten minutes had elapsed, and the freight had overtaken the work train before Niles had had sufficient opportunity to flag it, the collision would, nevertheless, have occurred, for, according to Klein’s statement, it would have taken about 600 feet to stop the train, so that, whether five, or
It is also urged by the respondent’s counsel that the company owed a legal duty to its employees to erect distance signals on freight tracks as well as on passenger tracks, and which are operated in connection with the tower signals, so that when the latter are placed at “ danger,” the former would also exhibit the danger signal. These distance signals are placed on passenger tracks some 1,600 to 2,200 feet, away from the tower. If they had been erected on the freight ■tracks the accident would not have occurred. The reason they are erected on passenger tracks and not • on the others is, it is stated, because of the greater rate of speed of passenger trains, and the same necessity does not exist as to freight trains. However, both Niles and Klein were conversant with- the system of track and tkain ■signals and .all the rules appertaining thereto. Since Klein knew that there was no distance signal, how is its absence material on the -question of the company’s liability under the circumstances of the case ? Having such knowledge and knowing that he could not perceive the tower signal until close upon it$ was he not bound to govern his actions accordingly and to keep his train under complete ■control while approaching the tower ? If he had observed the “ caution card,” or if he had observed the tower signal and stopped, or being in doubt, had stopped, or proceeded slowly and cautiously, as required by his instructions, the injury would not have resulted. The block signal being at “ danger ” preventing the passage of ■ freight trains, if observed, the absence of a distance signal was not material.
It may be contended that, as the freight train was obliged to run-through the tower at a good pace to avoid being stalled in the snow, the company was negligent in not providing additional precautions- — such as distance signals connected with the tower —■ to -meet this
The company had promulgated the following rules, among many others : “ If on the arrival of a train on either track three or four, at a block tower, the preceding train has not cleared the block, the signalman must hold train until ten (10) minutes after the departure of thepreceedi/ng train, unless the block should be cleared before the ten (10) minutes have elapsed.
“ If at the expiration of ten (10) minutes the preceding tradn'has not cleared the Mock, the signalman shall give the engineman a caution card, authorizing him to pass the signal at danger, and proceed into the Mock already occupied. Enginemen entering a block with caution card * * * will be held responsible in case of an accident caused by overtaking the preceding train. These rules do not relieve the conductors 'from the duty of promptly and properly protecting their trains. They will be held strictly responsible for the observance of Time Table Rule No. 95.” “ In the absence of any signal the train must stop, and cause of the failure to display the same must be ascertained. Trains .must, under no circumstances, pass signals at danger, except,” etc. . .
“ Whenever a train of any class is stopped on the road or detained at any regular station from any cause, or is only able to proceed at a slow rate, the: rear brakeman or trainman must go back instantly with a red signal at least one mile. This must always be donó whether another train is expected or not; and in carrying out this rule the utmost promptness is necessary ; not a moment must be lost in inquiring as to the cause of detention or stoppage, or its probable duration.” (Rule 95.)
A train of inferior class must, in all casés, keep out of the way of a train of a superior class. Wiles’ train was an extra and of inferior class.
Defendant Contends that the company was negligent, in failing to establish and promulgate reasonably safe, and sufficient moles for the management and control of its trains and engines dxorvng severe and long-contimoed snow storms. The ground urged in support of this contention- is, that because the company deemed it necessary or expedient to promulgate a particular rule in respect to foggy weather, it owed a legal duty to its employees to extend such rule so as to make it applicable during the existence of unusual snow storms, if, in the judgment of the jury, it would be practicable or feasible for that purpose, as testified to by certain witnesses.
In such case, it is insisted that the jury' has the right or power to determine that the omission or failure to so extend such rule con- " stituted negligence, and (in effect) to promulgate a rule of that character.' The ride referred to provides that, in foggy weather, when a train cannot be seen at 300 yards, trackmen must suspend ordinary work and patrol the track, acting as signalmen to warn trains of danger, should there be any.
It is argued that the same reason or necessity exists during the prevalence of blinding snow storms, obscuring the engineer’s vision of the track signals, and that the company was bound to require the
The clearing of the track from snow was a matter of paramount importance and demanded the particular attention of the trackmen, and it is insisted that they should have been required by rule to suspend their work and to patrol the tracks as signalmen to warn coming trains of danger, if any there should be, and the absence of such a rule may, in the judgment of the jury, constitute a breach of legal duty, and negligence. If, as it appears here, the movement of an engine and cars was impeded by the snow drifts, there would be considerable difficulty for the trackmen to patrol the tracks. The contention is that the system of signals and the rules may be all right and proper enough in fair weather, but that it was for the jury to say whether they were reasonably safe and sufficient during a severe and long-continued snow storm; in other words, that the jury was warranted in finding that the experienced officers of the .company should have foreseen or anticipated that the tower signal might become so obscured by a snow storm that the engineer could not perceive it, although he knew its location, and that he would be unable to do so’, and was bound to. stop, whether he could distinguish the signal or not; or, that the engineer would be obliged,'on account of snow drifts, to run through the tower to avoid being
Because the tower signal was in the vicinity of a station, and the station signal indicated a clear track to the station, was the engineer justified by any implied requirement of duty to the company, under the circumstances and conditions existing, in ignoring the tower signal and other rules, and passing through the tower at a good rate of speed to avoid being stalled ? In view of the condition of the weather, was it a negligent omission to provide some additional precaution, as suggested by respondent ? True, the station signal indicated a clear track, but that had no connection with the tower signal and was no part of the system, and the engineer was prohibited from passing the tower under any circumstances. Was the omission to erect distance signals, operated in connection with the tower, such an omission, in view of all the circumstances, as to render the company responsible for a failure to furnish a “ safe place ? ”
Upon the whole, we are of the opinion that the evidence is insufficient to establish negligence on the part of the company, and that the violation of the rules by co-employees, or their combined negligence, was the producing cause of the injury sustained.-
Where regulations for the running of trains which- are proper and suitable, with a view to the safety of employees, are prescribed, obedience to these regulations by those having charge of a- train is matter of executive detail; and for a disobedience of them which causes injury to a co-employee, the master is not liable. (Slater v. Jewett, 85 N. Y. 61.)
In Simpson v. Central Vermont R. Co. (5 App. Div. 614) plaintiff’s train was running on telegraph orders and was entitled to the right of way, and he contended that if a rule had been adopted that all trains should be kept off the main line .while detained at stations awaiting orders, the collision would not havg occurred: The court answered: “ So long as the rules which are promulgated will, if observed, secure safety, it is wiser to leave. the making of the new •rules to the company.”
In Berrigan v. N. Y. & L. E. R. Co. (131 N. Y. 583) it was pertinently observed: “ It is easy enough after an accident has occurred to suggest how it might have been prevented. * * *
In the absence of some proof * * * that such a rule was in operation by other roads, or of persons possessing peculiar skill and experience in the management and operation of railroads to the effect that such a rule was neeessa/ry * * * the court is not warranted in submitting such a question to. the .jury.” And in another case it. was observed that, “even if it could.be shown, after the accident occurred, that it might have been prevented by adopting and enforcing some suitable rule, that would constitute no proper test of liability.” (Morgan v. Hudson River Ore & Mining Co., 133 N. Y. 666, 670.)
In my opinion and for the foregoing reasons, the judgment herein and the order denying, the motion for a new trial must be reversed and a new trial ordered, with costs to abide the event of the action.
All concurred.
Judgment and order reversed and new trial ordered, with costs to abide the event. '