Whittaker v. Delaware & H. Canal Co.

• Decision Date: 02 June 1891
• Citation: 27 N.E. 1042,126 N.Y. 544
• Parties: WHITTAKER v. DELAWARE & H. CANAL CO.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 544

27 N.E. 1042

WHITTAKER

v.DELAWARE & H. CANAL CO.

Court of Appeals of New York.

June 2, 1891.

Appeal from supreme court, general term, fourth department.

Edwin Young, for appellant.

Louis Marshall, for respondent.

RUGER, C. J.

The appeal in this case was taken by the defendant, upon the usual stipulation, from an order of the general term reversing a judgment dismissing the complaint, and directing a new trial. The complaint was dismissed by the trial court upon the ground that the evidence failed to show negligence on the defendant's part, and also that the plaintiff did not show that his intestate was free from contributory negligence. Upon appeal to the general term, they held that there was evidence sufficient to support a verdict for the plaintiff on both grounds, and that the direction of a verdict by the trial court was therefore erroneous. We agree with the conclusion reached by the general term. There was evidence in the case from which the jury could properly have found that the injuries received by plaintiff's intestate were occasioned by the negligence of the defendant. The proof showed that the accident occurred in the night-time, in the defendant's railroad yard at Quaker street, through a collision between an incoming freight train, upon which the plaintiff's intestate was employed as fireman, and an engine left standing on the main track of the defendant's road, in violation of the rules of the company, by its engineer while he was waiting in the office near by for orders. It is claimed by the defendant that the presence of the stationary engine on the track was due to the fault of its engineer, who placed it there in contravention of a rule of the company forbidding its employes from placing engines and cars on the main track, except under orders. It is conceded that this engineer had no orders to go upon the main track with his engine, and it is therefore claimed that, the accident having occurred through the fault of a co-servant, the company is not liable. There was evidence in the case to show that this engineer and others, for a period of at least one year, had been in the habit of disobeying this rule of the company, and violating its requirements, by placing their engines upon the main track at Quaker street, and leaving them there while a waiting orders. This practice had been so frequently indulged in, and had continued for such a length of time, that the jury were justified in finding that it had come to the knowledge of the railroad company, and was pursued by their acquiescence, or as the result of a want of vigilance in supervising the management of their road. A railroad company does not discharge its whole duty to the public by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants, but 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. Railroad Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. Rep. 932;Chapman v. Railway Co., 55 N. Y. 579;Baulec v. Railroad Co., 59 N. Y. 356. Neither is its duty in respect to the employment of servants satisfied by the hiring of capable and competent persons in the first instance; but it is also required that they should exercise such an oversight and supervision of such servants that, if they afterwards become habitually, notoriously incompetent, or unfit, from carelessness or bad habits, to perform their duties, this incompetency, if long continued, should be discovered and guarded against. Laning v. Railroad Co., 49 N. Y. 521. It is not necessary that this incompetency should be brought to the personal knowledge of the master; but, if it continues for such a length of time as that a careful and diligent supervision of its business ought to bring it to its knowledge, it is chargeable with notice...