Smith v. New York Central & Hudson River Railroad — 69 N.Y. St. Rep. 76

Majority

p. 76

Emma Smith, as Administratrix, etc., App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

(Supreme Court, General Term, Third Department,

Filed July 6, 1895.)

Headnote

Masteb and sebvant—Rules.

A railroad company is not liable for the death of an employe, caused by a collision, where the rules adopted by the company were sufficient, if observed, to prevent such accident, but, through whose non-observance by the engineer of the colliding train, the accident was occasioned.

Appeal from a judgment entered on a nonsuit.

L. F. Griffith (T. F. Hamilton, of counsel), for appl’t; R. A. Parmenter, lor resp’t.

This action was prosecuted by the plaintiff, as administratrix of John Smith, deceased, an employe on a passenger train of the defendant’s railroad, who was killedj by a collision between the train on which he was employed and another train on the defendant’s road. The plaintiff’s intestate was a fireman on a locomotive engine of the defendant, attached to a passenger train required by the defendant’s time schedule to^run from Dutchess Junction to Fishkill, two stations on the defendant’s railroad, at about the rate of 103 miles an hour. This time schedule was in the possession both of the engineer and fireman on that locomotive, who were co-employes of the defendant. The defendant had established and promulgated rules for the government of its train hands, which were known to these employes and to all persons in the management of its trains, which, if observed by those employed in running the trains, would have rendered the accident improbable, if not impossible. The accident occurred by reason of the accidental stopping of a train in advance of the one on which intestate was employed, and going in the same direction. The rules of the defendant, among other things, provided that when any train was stopped on the road, or impeded, or is-only able to proceed at a slow rate, the rear brakeman or trainman must go back instantly with a red signal, at least half a mile. Had this rule been observed, sufficient warning would have been given to have stopped the train on which intestate was employed, and thus averted the injury. To this rule there is an- exception—that when the train is guarded by a distance signal, or flagman displaying a red or danger signal at a sufficient distance to protect from injury, which the trainman must see and know, he may, instead of going back half a mile,

p. 77

rely upon such signal. The case shows that a Semaphore, displaying a danger signal, was set; and that the signal man, on seeing .that, took up his torpedoes, and returned; and that the intestate’s train passed the semaphore without heeding its warning and thus collided' with the engine engaged in helping the disabled train. The rules also require that all trains approaching a station, junction, or point where a signal is located must do so expecting to find them at danger, and must be prepared to stop. Had this rule been observed by the engineer and intestate, the collision could not have occurred, and the serious consequences to intestate would not have followed.

It is urged by the appellant that the proof shows that other railroads have different rules from those adopted by the defendant, and that from that proof the jury might have found that the rules of the defendant were defective to such an extent that the jury might have found it guilty of negligence; but we find no proof that the rules of the defendant were so defective that, if strictly followed by the employes, they would not have afforded ample protection to all employes under them. We think the learned judge was fight in holding that there was entire failure of proof to establish any negligence of the defendant, and, if the accident was caused by negligence, it was the negligence of the intestate’s co-employes, which was a risk he took when he engaged in the service of the defendant, and for which his personal representative cannot recover in this action. We find no error in the rulings or decision of the learned trial judge for which this judgment can be reversed.

Judgment affirmed, with costs.

All concur.