Warn v. New York Central & Hudson River Railroad

We are of the opinion that the facts in this case should have been submitted to the jury, and that the non-suit was improper. The law imposes upon a railroad company the duty to its employes of diligence and care, not only in furnishing proper and reasonable safe appliances and machinery, and skillful and careful coemployes, but also of making and promulgating rules which, if faithfully observed, will give reasonable protection to the employes. Abel v. D. & H. C. Co., 103 N. Y. 581 ; 4 St. Rep. 269 . It is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules. Whittaker v. D. & H. C. Co., 126 N. Y. 549 ; 38 St. Rep. 523 . If defendant’s rule No. 36 was intended to apply to a train like the one in the inspection of which the plaintiff was injured, it became a question of fact whether the defendant was guilty of negligence in regard to its proper promulgation and enforcement If that rule was not intended to apply to such a train, then it became a question of fact whether the defendant had performed the measure of its duty within the rule laid down in the Abel Case. The defendant, in making rules for the government of its employes, is bound to use ordinary care, and to anticipate and guard against such accidents and casualties as may reasonably be foreseen by its managers exercising such ordinary care. Berrigan v. N. Y., L. E. & W. Railroad Co., 131 N.Y. 582 ; 42 St. Rep. 858 .

Nor should it be said, as matter of law, that under the facts of the present case the plaintiff assumed the risk, as incident to the business. In Abel v. D. & H. C. Co., 128 N. Y. 664 ; 40 St. Rep. 626 , it is said that the rule that the servant takes the risk of the business is subject to the qualification that the master must exercise reasonable care to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from negligence of coemployes. See, also, McGovern v. Central Vt. Railroad Co., 123 N. Y. 280 ; 33 St. Rep. 416 . Negligence of a servant does not excuse the master from liability to a coservant for an injury which would not have happened, had the master performed

All concur.

Judgment reversed, and new trial ordered; costs to abide the event.