88 N.Y.S. 758 | N.Y. App. Div. | 1904
The charge of negligence against the defendant which was submitted to the jury was its failure to make, promulgate and enforce suitable and sufficient rules for the guidance of its employees with reference to their own safety in moving cars and making up trains. The learned trial justice instructed the jury that as matter of law the rules quoted in the statement of facts were applicable to the movement of cars in making up trains. It would seem from some of the expressions contained in the charge. that the court intended to instruct the jury that these rules, if enforced, were sufficientbut the court declined to rule that the rules were sufficient and their, sufficiency was left, as a question of fact, to the determination of the jury and counsel for the defendant excepted. This, we think, was error. Assuming that the rules forbidding pushing cars, except in cases of accident and then requiring a man on the rear platform, and requiring a motorman to regulate the speed so that he could stop in the distance that he could, see ahead,-were-applicable to the move^ ment of cars in making up trains, it is manifest that if they, or any of, them, had been observed the accident would not have happened. It was not shown that. any other rules that would afford greater safety to the employees were in use under similar circumstances by other railroads, nor were experts called to show the necessity or practicability of any other rules. In these circumstances to leave'the question of the sufficiency of such rules to the jury is to permit them to speculate without any guide as to the necessity for other rules; and there may have been no uniformity of opinion on the part of the jurors as to the nature of the other rule or rules that they were left to find should have been adopted and promulgated. (Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582; Morgan v. H. R. Ore & Iron Co., 133 id. 666; Corcoran v. N. Y., N. H. & H. R. R. Co., 58 App. Div. 606; Kapella v. Nichols Chemical Co., 83 id. 45 ; Larow v. N. Y., L. E. & W. R. R. Co., 61 Hun, 11.) We are of. opinion, however, that these rules did not apply to the making up of trains. They appear to be applicable only to the movement of trains after the
It follows, therefore,, that the judgment and order should be reversed' and a new trial granted, with costs to appellant to abide the -event. ■ ■
Patterson,. Ingraham, McLaughlin and Hatch, JJ., concurred.
Judgment and ordef reversed, néw trial ordered, costs to appel- '. lant to abide event..