58 N.Y. 217 | NY | 1874
In the case of Flike v. Boston and Albany Railroad Company
(
In the case before us it appeared in proof that the train on which the plaintiff's intestate was a brakeman went out within three or four minutes after another train, and was itself followed by a third train, at about the same distance of time. The injury which resulted in the death of the plaintiff's intestate was the consequence, as the jury have found and as they might rightfully find from the evidence, *221
of those trains being sent out so near together. By what direction they started so nearly at the same time does not appear. All the proof that relates to the point is contained in the single phrase of one of the witnesses, who, speaking not of the time of the accident but of the time of his testifying, says: "The head conductor who has charge of sending out trains is Mr. Rockefeller." What charge Rockefeller had is not shown, nor whether he, in fact, dispatched the trains in question. It does not appear whether he was intrusted with any discretion upon the subject of starting trains, or whether any regulations on the subject, either by a prescribed time table or otherwise, had been made by the company. But it is obvious that the company may have prescribed proper and safe rules in respect to the starting of these trains, and that those rules may have been disregarded by the persons who actually started these trains so near each other. It may be conceded that it is the duty of a railroad corporation to prescribe, either by means of time tables or by other suitable modes, regulations for running their trains with a view to their safety; but it is obvious that obedience to these regulations must be intrusted to the employes having charge of the trains. Such obedience is matter of executive detail which, in the nature of things, no corporation or any general agent of a corporation can personally oversee, and as to which employes must be relied upon. In Wright v. New York Central Railroad Co. (
It being quite possible that on another trial this difficulty may be obviated, it seems proper to add that the defendant was not entitled to the charge requested, that the plaintiff could not recover if the deceased knew that trains were often sent out with seventeen or more cars and only two brakemen, and had always gone on such trains with only two brakemen. It did not appear that the deceased had any knowledge that the train which preceded his on the morning in question had only two brakemen, nor that the accident was occasioned by there being but two brakemen on that train. The judge, at the trial, submitted it to the jury, which was certainly all that the defendant could claim. The other points made require no discussion; but on the first ground considered there must be a new trial.
The judgment should be reversed and new trial ordered, costs to abide the event.
All concur.
Judgment reversed. *223