Riola v. New York Central & Hudson River Railroad

The complaint in this action alleges that plaintiff for some time prior to the date of the accident (October 9, 1901) had been employed by the defendant as a common laborer upon a work train operated by the defendant, and that at the time of the accident he was employed in working upon and around defendant’s switches and tracks in and about the railroad yards at Niagara Falls, N. Y.; that by reason of the negligence of the defendant in neglecting to give signals of the approach of a train, its failure to use diligence in the selection of servants and agents, its employment of an incompetent foreman, and the carelessness, negligence, and unskillful management by the defendant and its employés, its neglect and failure to ring a bell or blow a whistle, and the failure of the foreman over and in control of this plaintiff to give plaintiff signal of the train’s approach, he was struck by a train, and thrown to the track in such a way that the wheels of the train and locomotive passed over and mutilated plaintiff’s legs and body. The evidence shows that plaintiff was, and for some time prior to. the accident .had been, in the employ of the defendant upon a work train; that at the time of the accident he was engaged in working near a switch sweeping with a broom, and the engine backing down behind him struck him as he was stooping over cleaning a point on the switch, and injured him seriously. He testified that prior to the accident, while he was standing up, the boss asked him why he did not work, and he said, “The train coming; I want to see, watch the train coming.” He said, “Never mind, work; I will tell you when train coming.” The foreman making this statement was one Doyle. The foreman and conductor of the work train having charge of all of

The trial court charged the jury that, if Doyle promised to watch for the train and warn the plaintiff of its approach, and failed and neglected to do so, the jury were authorized to find that defendant was guilty of negligence. To this instruction an exception was taken. The court was requested to charge:

“That if the jury find that the plaintiff had begun to work under Doyle as foreman, the latter gave assurance or promise to the plaintiff that he (Doyle) would notify the plaintiff of any danger of a train or engine, and that the plaintiff need not look out for himself, that such assurance or promise was that of a fellow servant, for which the defendant is not responsible.”

This was declined, and the defendant excepted. The court stated:

“Of course, that would be true, and I would charge it, except that I think my charge should stand as it has already been given, providing the jury find that Doyle had authority to hire and discharge these men, and to direct them as to what they should do, and the manner in which they did their work, and in that capacity represented the master and acted as its agent.”

An exception was taken to the submission to the jury of the question as to whether Doyle was authorized to make any such promise. The testimony of the plaintiff as to the employment was:'

“I was hired by Vincenzo Maragandi, who engaged the labor for the New York Central. The foreman under whom I worked at Tonawanda was Patsy (Patrick Donahue). Patsy was foreman, and he was conductor, too, of the work train. I worked upon the work train, doing everything—unloading and loading ties and rails, etc., and putting them in the tracks wherever the work train took us in our work. I was part of the work train gang. I had worked in Niagara Palls yards five days before the accident, but not in the same'place. It was between the bridge and Niagara Palls, under another foreman, and then I went back to the work train again, and then another morning they fetched me to Niagara Palls to work in the place where the accident happened. Q. Who told you where to work? A. Patsy. He left us there. I had worked in the Niagara Palls yard before the morning that I was hurt. Q. How many times? A. Every time we were going to load the ashes with the work train. We worked there gathering up ashes and cleaning. I had worked under John Doyle, section boss. He was boss over the gang. Q. How did you come to go under him that morning? A. It was a wreck in Tonawanda, and Patsy took seven or eight men and took them to Tonawanda, and left us under this foreman, John, in the Niagara Palls yard.”

We think the evidence clearly establishes that Doyle was the foreman of the gang about the yard, and that the evidence did not establish that he.was authorized to make any special contract or promise on be"half of the defendant by which it should become responsible for his acts or negligence in the discharge of his duty as foreman of the gang. The testimony of Doyle himself was that he had no authority whatever to make any rule or regulation for the company in regard to the men, or in regard to giving them notice of the approaching trains. The case was left to the jury to determine whether Doyle had authority to make a contract, and, as stated by the court, it being assumed as the law that, unless there was such a contract, the failure of Doyle to give the signal to the plaintiff was not chargeable to the defendant. We think the evidence did not warrant the submission of that question to

We are cited to a number of adjudications which by implication are said to bear out the theory of the plaintiff in this case, and, as is usual, there are features similar to the case under consideration attaching to most of the cases cited. But we think the facts in this case bring it clearly within the well-defined rules governing master and servant, namely, that the duty of the master was to furnish a reasonably safe-place, proper appliances, and competent foremen,1 leaving the detail of" the" work to the-judgment of the foreman; and in these respects the-master has not been shown to be guilty of negligence. The statement made by Doyle to plaintiff that he would watch for trains was not a warranty or contract of any character on the part of the defendant, but" was a direction as to a detail of the work which was properly within the charge of the foreman. The negligence, if any,, in the failure to-give notice of the approach of the switch engine, was that Of a fellow employé, for which the master was not liable. The instruction of the court was, therefore, erroneous, and the judgment and order should be reversed, and a new° trial granted.

Judgment and order reversed, and a new trial granted, with costs to the appellant to abide the event. All concur except SPRING and, HISCOCK, JJ., who dissent.