99 N.Y.S. 794 | N.Y. App. Div. | 1906
The law imposed upon the defendant the duty of making and enforcing such reasonable rules and regulations for the government of the men.in its service as to prevent or guard against injury by one servant to another in so far as that was reasonable and practicable. (Doing v. New York, Ontario & Western R. Co., 151 N. Y. 583; Corcoran v. Delaware, Lackawanna & Western R. R. Co., 126 id. 673.)
It was held by the learned trial court that the rules ¡Dromulgated by the defendant were adequate and sufficient and that the accident was caused solely by the negligence of the crew of the freight train in not properly observing such rules. It was proved that two prominent railroad companies had, in addition to the rules above set forth, a further rule which as applicable to this case would have required the first section of the north-bound passenger train to stop at once in case its signals were not acknowledged by the freight train and not to proceed until they were acknowledged. The reasonableness and practicability of such an additional rule was thus established by proof of the fact that it was in operation by other railroad companies. Had such an additional rule been in force by the defendant this accident would not have happened."
It is said by the defendant that the crew of the freight train was required by the rules to be on the lookout, to be observant, and in case of doubt or uncertainty to take the safe course and run no risk, and that if such rules had been observed the accident would not have hapqiened, and, hence, that the rules were adequate. Such rules- must be given a reasonable construction. It would be' unfair' for the defendant to shield itself behind such general and indefinite • provisions. Those rules simply express what would be the duty of the defendant’s employees without the rules. The jury might have found in this case that by reason of a curve in the" defendant’s road the green lights were not observable more than four or five seconds before they passed the engine of the freight train. It could not be expected that the engineer of the freight train would be on the lookout every second of time in the direction of an approaching train,
The case is not analogous to the cases of Shannon v. New York Central & H. R. R. R. Co. (88 App. Div. 349) and Smith v. New York Central & H. R. R. R. Co. (88 Hun, 468). In the first of those cases an engineer failed by reason of a dense fog to observe a danger signal requiring him to stop. It was proved that other railroad companies operating under different conditions and with different systems of rules, had a rule requiring that in such a case torpedoes be placed on the track as an additional warning of danger. But it appeared that the defendant company had a rule that a signal imperfectly displayed or the absence of a signal shotúd be regarded, as a danger signal and as a command to stop, and hence the engineer was already informed by the rules in force that it was his duty to stop, and an additional rule providing for the use of torpedoes would have given no additional information and would have been superfluous. So, also, in the Smith case, while it appeared that other railroad companies had different rules than those adopted by the defendant, yet at the same time it appeared that a semaphore displaying a danger signal was set, and that the train in question passed the semaphore without heeding this warning to stop, and thus the collision occurred. In both of those cases the rules were adequate to actually inform the persons charged with their observance of the facts which-constituted the impending danger. Here the rules were not as matter of law adequate to accomplish that object. It was a question for the jury whether or .not the defendant was negligent in not having promulgated rules which were adequate to convey to the crew of the freight train the information that the north-bound train was running in two sections.
Even if the crew of the freight train was negligent in not observing and heeding the signals, nevertheless such negligence does not
The judgment -must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.
