Majority
p. 198Eunice M. Hayes, as Administratrix, etc., of Louis A. Hayes, Deceased, Plaintiff, v. New York, New Haven and Hartford Railroad Company, Defendant. Second Department, July 23, 1907.
Headnote
Master and servant—railroad — injury by collision—failure to obey orders*Where a direct and specific order has been given to the condnctor and engineer of a train to meet an extra train at a siding, the regulations of the defendant requiring the extra train to take the siding, an employee on such train cannot recover for injuries received in a collision with the extra train caused by the failure of his fellow-servants to stop at the siding, owing to the mistaken ■ belief that an engine seen on the siding was the train which they were ordered to pass. This, because the proximate cause of the injury was the violation of ’ a direct and specific order. '
Motioe by the plaintiff, Eunice M. Hayes, as administratrix, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a verdict for the defendant having been rendered, by direction of. the court after a trial at the Dutchess County Trial Term.-
. Daniel P. Says and Samuel M. Levy, for the plaintiff.
Walter C. Anthony, for the defendant..
The plaintiff’s intestate was killed when a fireman in one of defendant’s locomotive engines that was hauling a freight train on April 29, 1905, at about 11 o’clock p. m. At the place of the accident the road was of a single track, with here and there side tracks, called sidings. ' A short distance west of Stormville station was a siding called “ Stormville long siding.” Before the train started eastward from a station .3 or é miles west of Stormville, an-order had been given to the engineer and conductor of the
p. 199
train to meet a west-bonnd freight train known as extra 439 at Stormville long siding. The regulations of the defendant required extra 439 to take this siding and to leave the track clear for the train in which the intestate was at work. Extras were designated by the engine number, and this number, extra 439, referred to the engine number. This was commonly understood. When the train of the intestate approached the siding, those in charge of the train saw a locomotive engine detached at rest on the siding. They assumed that it was the locomotive engine of the train known as extra 439 which they' were to meet there. They continued, on their way, passing the siding, and just beyond it their train collided with train extra 439, and the intestate was killed. ■ At the close of the case the court, in. "response to motions by the defendant, directed:a verdict for the defendant and ordered the exceptions to be heard in this court in the first instance. This disposition was made upon the ground that the proximate cause of the injury was the violation of a direct and specific order, In the language of Mr. Justice Bürr, who presided: “There was a direct and specific order given to the employees of this train to stop at that siding until another particular train, specified and described, had passed there. That order was disobeyed, and that was the disobedience of a fellow-servant for which the defendant is not responsible.” W.e are of opinion that the learned court made a correct disposition of the case. Eor aught that appears, the collision would have been avoided if the engineer and conductor had -obeyed the orders, which were clear, definite and precise. Obedience to the orders “ 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.” (Rose v. Boston & Albany R. R. Co., 58 N. Y. 211 , 221; Slater v. Jewett, 85 id. 61, 67.)
The rulings are sustained and the motion for a new trial is denied, with costs.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Defendant’s exceptions sustained and motion for new trial denied, with costs.