Abel v. President

• Decision Date: 07 December 1886
• Citation: 103 N.Y. 581,9 N.E. 325
• Parties: ABEL, EX'X, etc., v. PRESIDENT, ETC., OF DELAWARE & HUDSON CANAL CO.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 581

9 N.E. 325

ABEL, EX'X, etc.,

v.PRESIDENT, ETC., OF DELAWARE & HUDSON CANAL CO.

Court of Appeals of New York.

December 7, 1886.

Action for damages. Nonsuit. Plaintiff appeals.

N. C. Moak, for appellant.

L. B. Pike, for respondent.

PER CURIAM.

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 employes 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 employes, 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 employes of diligence and care, not only to furnish proper and reasonably safe appliances and machinery, and skillful and careful co-employes, but also to make and promulgate rules which, if faithfully observed, will give reasonable protection to the employes. Slater v. Jewett, 85 N. Y. 61;Besel v. New York Cent., etc., R. Co., 70 N. Y. 171;Sheehan v. Same, 91 N. Y. 339;Dana v. Same, 92 N. Y. 639.

It appears that the managers of some railroads in this country have adopted a rule substantially like this: ‘A blue flag by day and 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 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...