Dayton v. Brooklyn Heights R.

The plaintiff was a guard on an elevated train operated by the defendant on Fifth avenue, in the borough of Brooklyn. The train on which he was serving became stalled between Twenty-Ninth and Thirtieth streets, and the lights went out, except as to two small red lights shining from the end of the rear car. It was dark, but clear. Another train coming from Thirty-Sixth street ran into the rear of the stalled train with such force that the plaintiff, who was not on the rear car, was precipitated to the street below and received injuries of a very serious character. The motorman of the on-coming train was killed, but from the management of his train it is a fair inference that he did not see the stalled train. On the stopping of the train, the rear brakeman, standing on the rear platform, swung one of the red lights back and forth across the track for the evident purpose of warning other trains. The track runs on a downgrade from Thirty-Sixth street to Twenty-Ninth street.

The plaintiff urged that the defendant’s rules were insufficient to protect employés from the effects of rear-end collisions such as this. The rules' that were in force imposed upon the conductor of trains that were compelled to stop for any unusual reason the duty of protection by signals displayed at the rear of the train, and charged all motormen with the duty of a high degree of watchfulness. The plaintiff suggests, however, that the defendant was negligent in not promulgating and enforcing a rule requiring some person to go back from the rear of a stationary train far enough so that a warning from him

“What is reasonable and proper, under a complicated state oí facts, permitting diverse inferences, is a question of fact.”

The situation in this case was complicated. Trains.were running frequently, if not under high speed. There was ,a sharp grade downward in the direction in which the trains were running. The night was dark, though clear. The lights on the stalled train were either entirely or almost all extinguished, except two red lights, which some of the witnesses describe as very dim. The lights of the city were to be seen, -and might easily be confused with what were left of tire lights on the train. The general business of operation was inherently dangerous. Under the circumstances, the question of negligence in the failure to promulgate and enforce a rule requiring some one to go back on the track and warn approaching trains was for the jury.

The judgment should be affirmed, with costs. All concur.