Abel v. President of Delaware & Hudson Canal Co. — 4 N.Y. St. Rep. 269

Majority

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Agnes E. Abel, ex’rx, etc., App’lt, v. President of Delaware and Hudson Canal Co., Resp’t.^[1]

(Court of Appeals,

Filed December 7, 1886.)

Headnote

1. Negligence—Railroad—Master and servant.

The plaintiff’s testator was a ear repairer in the employ of the defendant, and while under one of its cars standing upon a side track engaged in making repairs, its employees using an engine carelessly backed a car against it, and thus he came to his death. There had been no special rule promulgated for the government of the employees and the safety of repairmen: Held, that whether other rule promulgated were sufficient to protect the repair-men was for the jury, and that a non-suit was error.

2. Same—Duty of master to promulgate rules for protection of SERVANTS.

The law imposes upon a railroad company the duty to its employees of diligence and care, not only to furnish proper and reasonably safe appliances and machinery and skillful and careful co-employees, but also to make and promulgate rules which, if faithfully observed, will give reasonable protection to the employees.

Appeal from a judgment of the supreme court, general term, third department, and from a motion for a new trial on exceptions heard in the first instance at general term. A non-suit was granted at the circuit.

Nathaniel C. Moak, for app’lt; L. B. Pike, for resp’t.

The plaintiff’s testator was a car repairer in the employ of the defendant, and while under one of its cars standing upon a side-track, engaged in making repairs, its employees using an engine, carelessly backed a car against it, and thus he came to his death. The principal claim on the part of the plaintiff is that the evidence tended to show that the defendant had not made and promulgated proper rules for the government of its employees, and hence its negligence in that respect should have been submitted to the jury. The law imposes upon a railroad company the duty to its employees of diligence and care, not only to furnish proper and reasonably safe appliances and machinery, and skillful and careful co-employees, but also to make and promulgate rules which, if faithfully observed, will give reasonable protection to the employees. Slater v. Jewett, 85 N. Y., 61 ; Besel v. New York Cent., etc., R. Co., 70 id., 171 ; Sheehan v. Same, 91 id., 339; Dana v. Same, 92 id., 639.

It appears that the managers of some railroads^ in this country have adopted a rule substantially like this : “A

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blue flag by day and a blue light by night, placed in the draw-head or on the platform or step of a car at the end of a train, or car standing on a main track or siding, denotes that the car-repairmen are at work underneath. The car or train thus protected must not be coupled or moved until the blue signal is removed by the repair-men.” This is certainly a very efficient rule, and, if faithfully and carefully observed, would give reasonable protection to repair-men.

The plaintiff contends that it was, under the circumstances of this case, a question for the jury to determine whether the defendant, for the protection of its repair-men, engaged in a peculiarly hazardous work, should not have promulgated such a rule, or one substantially as efficient. The only rule the defendant had made bearing upon this case was as follows: “ A red flag by day, and a red lantern by night, or any signal violently given, are signals of danger, on perceiving which the train must be brought to a full stop as soon as possible, and not proceed until it can be done with safety.” This rule seems, from its phraseology, to have been mainly, if not exclusively, intended for the government of moving trains, and was not very well adapted for the protection of men under stationary cars upon side tracks engaged in making repairs. There was no rule prohibiting the removal of the signal, and the signal was not intended exclusively for the. protection of such men, nor did it give notice that human life was in danger. It matters not that there was a custom or rule among the repair-men in the employ of the defendant at Mechanics-ville that they should place a red flag at each end of the cars which they were repairing. It does not appear that that rule was regularly promulgated by the defendant, or that obedience to it was required by the defendant; nor does it appear that it was printed, or generally known to the engineers engaged in running trains. It appears that it was a common and frequent occurrence for engines and cars to be switched upon the side tracks at Mechanicsville without any check or hinderance from any one having control of the tracks at that place, and thus the repair-men engaged under and about the cars seem to have been exposed to constant peril. We do not perceive how it was possible to say, as a matter of law, that the rules of the defendant were proper and sufficient for the protection of its repair-men, and that it should not have taken greater precautions, by rules or otherwise, for their safety. We think the facts should have been submitted to the jury, and that the non-suit was improper.

The judgment should be reversed, and new trial ordered, costs to abide event.

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All concur, except Earl, J., not voting, and Miller, J., taking no part.