132 N.Y.S. 954 | N.Y. App. Div. | 1911
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event, unless the plaintiffs stipulate to reduce the verdict to the sum of $5,000 as of the date of the rendition thereof, in which event the
The action was for negligently causing a death, and was brought by the heirs of the deceased. The accident occurred between two and three o’clock in the morning of January 2, 1907, at Cold Spur station, in the State of Montana. • The deceased was a freight conductor. On the night in question he had charge of an extra freight train going east. It was stopped at Cold Spur, a signal station, because the block signal was against it; the block to the east was not clear. The road was a single-track one, and the train stood on the main track between the two switches, at the ends of the siding. The next signal station east was Livingston. The next one to the west was Hoppers, four and a_ half miles from Cold Spur, and there was a two per cent down grade from Hoppers to Cold Spur. The extra freight was made up of thirteen cars, a dead engine, its own engine and a caboose. In the caboose, as the train stood at Cold Spur, were the conductor, a brakeman and the engineer and fireman of the dead engine. Two other engines had been pushing trains up the grade beyond Hoppers and were coupled together, and started down towards Cold Spur. When they passed Hoppers the signal there, by mistake, showed a clear block to Cold Spur. After the engines passed by, the operator at Hoppers, having discovered the mistake, notified the operator at Cold Spur that they were in the block, on their way down towards Cold Spur. The caboose was 600 to 700 feet inside that block. The operator at Cold Spur was unable to clear -the block east of Cold Spur, so the extra freight could proceed on its way, and did not succeed -until just before the accident occurred, and too late for the train to get out of the block. Upon getting the notice from the operator at Hoppers, the operator at Cold Spur at once went to the caboose and notified the men therein that the light engines were coming. The brakeman took a white light and a fusee and went back a few car lengths. The conductor told him not to flag the engines but to light a fusee and throw it out of the caboose, and that would be sufficient. There were six or seven minutes
The accident having occurred in Montana, the law of that State governed as to the liability of the defendant. (McDonald v. Mallory, 77 N. Y. 546, 550, 551; Wooden v. W. N. Y. & P. R. R. Co., 126 id. 10, 14, 15.)
The statute law of a foreign State is a fact to be proved, like other facts going to make out a cause of action. (Pratt v. Roman Catholic Orphan Asylum, 20 App. Div. 352-354; affd., sub nom. Conkling v. Roman Catholic Orphan Asylum, 166 N. Y. 593.) .
Three statutes of Montana, were referred to on the trial:
■First. Section 579 of the Civil Code, section 6886. of the General Statutes, viz.: “When a representative may sue for death of one caused by the wrongful act of another. ■ When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, Ms heirs or personal representatives may maintain an action of damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section such damages may be given as 'under all the circumstances ■of the case may be just.”
Second. Chapter 83 of the Laws of 1903, viz.: “ An act. to determine the liability of employers in this State for damages to employees. * * * Section 1. Every railway corporation,, including electric railway corporations, doing business in this State, shall be liable for all damages sustained by an employee thereof witMn this. State, without contributing, negligence on his part, when such damage is caused by the negligence of any train dispatcher, "telegraph operator, superintendent, master mechanic, yard master, conductor, engineer, motorman or of. any other employee who has superintendence of any stationary
Third. Chapter 1 of the Laws of 1905, viz: “ An act to determine the liability of persons or corporations operating railways or railroads in this State for damages sustained by employees thereof and to declare void contracts restricting such liability. * * * Section 1. Every person or corporation operating a railway or railroad in this State shall be liable for all damages sustained by any employee of such person or corporation in consequence of the neglect of any other employee or employees thereof, or by the mismanagement of any other employee or 'employees thereof, and in consequence of the wilful wrongs, whether of commission or omission, of any other employee or employees thereof, when such neglect, mismanagement or wrongs are in any manner connected with the use and operation of any railway or railroad on or about which they shall bé employed, and no contract which restricts such liability shall be legal or binding. Section 2. In case of the death of any such employee in consequence of any injury or damage so sustained, the right of action shall survive, and may be prosecuted and maintained by his heirs or personal representatives. Section 3. All acts and parts of acts in conflict with, this act are hereby repealed. * * "x" ”
Section 579 of the Civil Code had been passed before and was in force at the time of the passage of the acts of 1903 and 1905. The Code provision and the act of 1903 were put in evidence on the trial, but the act of 1905. was excluded under plaintiffs’ objection. While this ruling was based upon the form of the pleadings, yet if the act could be held to deprive the plaintiffs of the right to recover in the action, the court should have permitted any amendment of the pleadings, necessary to allow the act to be put in evidence and the defendant to have the benefit of it. No recovery should have been allowed not permitted under the laws of Montana as they existed at the time of the
Looking at these acts all together, I am unable to see why ’ they should not stand together, or why any of them should be regarded as conflicting and, therefore, repealed.
The first one gave personal representatives a right of action, but still left negligence of coemployees a defense. The act of
The jury upon the evidence and in view of the statutes of Montana very properly found the defendant guilty of negligence which caused the conductor’s . death. They could not have found differently. I think they were also justified in finding the deceased free from contributory negligence. There were several rules bearing upon this subject put in evidence.
Subdivision A, rule 899, provided for the flagging of a train stopped or delayed when it might be overtaken by another train. Subdivision 3 of rule 80 on time card provided that block signal rules in no way relieved trainmen from the necessity of flagging, and conductors should impress this upon trainmen. The train must at all times be as fully protected as prior to block signal operation.
Subdivision G of rule 898, however, provided that when a train was occupying the main track between switches at stations no signal need be sent out except when the delay was unusual, view obstructed or weather such as to prevent seeing far enough ahead to avoid accident, and as a general rule responsibility for rear collisions at stations rested with the approaching trains.
All the facts stated in this last rule existed in this case and would seem to have excused the conductor from complying with the two former rules quoted. (See, also, Northern Pacific Railroad v. Poirier, 161 U. S. 48, which considered the effect of the two first rules referred to.) The general superintendent
Under all this evidence I think it was a question for the jury to say whether the deceased was free from contributory negligence. • It could not be determined as a matter of law. I do not think we should disturb this finding by the jury.
Without discussing them in detail, I think no errors were committed in the reception of evidence, or in the charge, calling for a reversal and another trial. It seems to me the verdict was excessive and should be reduced to $5,000. The statute required the damages to be such as under all the circumstances were just. The deceased was forty-seven years old and unmarried; he' left a mother seventy-nine years old, a sister under forty years of age, and several brothers living in the east. He had lived in the west twenty-two years and had been to visit his relatives in the east but twice in that time, the last time seven years before his death, His earning capacity was $150 per month. He had accumulated no property and he sent but little money to his relatives. The damages suffered by his heirs by his death were necessarily very small, not even $5,000.
Nor do I think it was a case for an extra allowance of costs. It was not a difficult and extraordinary case, and, therefore, the court had no power to make the allowance.
All concurred, except McLennan, P. J., who dissented and voted for reversal of the judgment and order denying motion for new trial, as well as the order granting additional allowance.
Judgment and order denying motion for new trial reversed and new trial granted, with costs to appellant to abide event, unless the plaintiffs shall, within twenty days, stipulate to reduce the verdict to the sum of $5,000 as of the date of the rendition thereof, in which event the judgment is modified accordingly, and as so modified is, together with the order denying motion for a new trial affirmed, without costs of this appeal to ’either party, Order granting additional allowance reversed, without costs.