Able v. President

• Decision Date: 27 October 1891
• Citation: 28 N.E. 663,128 N.Y. 662
• Parties: ABLE v. PRESIDENT, ETC., DELAWARE & H. CANAL CO.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 662

28 N.E. 663

ABLE

v.PRESIDENT, ETC., DELAWARE & H. CANAL CO.

Court of Appeals of New York.

Oct. 27, 1891.

Appeal from supreme court, general term, third department.

Action by Agnes E. Abel, as executrix, etc., against the Delaware & Hudson Canal Company, to recover for the death of her testator while in defendant's employ. Defendant appealed to the general term from a judgment entered upon a verdict for plaintiff, and, the judgment being affirmed, appealed to this court. Affirmed.

Plaintiff's testator was a repairer of cars, working in the yard of defendant at Mechanicsville. While repairing several cars on the ‘cripple’ track, or track where cars out of order are placed, and standing between two cars, other cars were ‘kicked in’ on such track. Some one called to him to look out, and he attempted to get from between the cars, but unsuccessfully, and was killed.

EARL and GARY, JJ., dissenting. 10 N.Y. Supp. 154 , affirmed.

Edwin Young, for appellant.

Jesse S. L'Amoreaux and Nathaniel C. Moak, for respondent.

ANDREWS, J.

The judgment of nonsuit rendered on the first trial of this action was reversed by this court on the ground that the question of negligence, in respect of the duty of the defendant to make and promulgate proper rules for the protection of car-repairers, should have been submitted to the jury. 103 N. Y. 581, 9 N. E. Rep. 325. The second trial resulted in a verdict for the plaintiff. This appeal is from the judgment on the verdict.

The additional evidence given on the last trial on the subject of rules would not have justified the trial court in determining, as a question of law, that the defendant's duty in this respect had been performed. The company, neither by its board of directors nor by any general officer or superintendent, ever enacted or published any rule for the special protection of car-repairers, nor was any instruction, verbal or otherwise, ever given by any superior officer to their subordinates on the subject. Rule 63 of the general rules of the company was enacted primarily, as its language shows, to regulate the movement of ordinary trains, and to prevent collisions, and had no reference to the switching of cars on the repair tracks. It stated, what doubtless was generally understood by employes, that a red flag by day or a red lantern by night was a danger signal. But it gave no instructions for the protection of car-repairers, either as to the duty of maintaining the signal while the car-repairers were at work, or as to the persons by whom it might be removed. At Mechanicsville, where the accident occurred, it seems to have been left to Cowen, the foreman of the repairers, and to Donnelly, the foreman of the switchmen, to regulate the matter, in their discretion. Cowen testifies that he told his men that they were to work under the protection of a red flag, and that he designated Hickey and Patrick, who worked at the north end of the cars on the cripple track, and Dwyer and Wicks, who worked at the south end, to put a red flag in the draw-head of the outermost car at the respective ends before going to work, and to protect the same, and also that he informed Donnelly and the brakemen that the repair-men worked under the protection of the red flag. Donnelly on the first trial testified substantially that the only rule he heard of was rule 63, and what the repair-men told him, viz., that they worked under the protection of a red flag. It is evident that, if this was the extent of the regulations on the subject, the repair-men had a very inadequate protection. If the red flag was put up and maintained wherever the repair-men were at work, and the meaning of the signal was known by the switchmen, as it probably was, the repair-men would be protected, except as against the reckless or heedless conduct of the switchmen. But it was essential to the efficiency of the rule that it should designate the persons authorized to remove the flag. It was shown that this was done by the rules of the New York Central Railroad, which provide that the repair-men alone should have power to remove the flag from cars on a repair track. The same rule was recommended in railroad manuals published before the occurrence of the accident in question. It is obvious that such or a similar regulation, which should place the duty and responsibility of removing the flag upon persons officially designated, was essential to the car-repairers' protection. The rule that they should put up a red flag when they commenced work, unaccompanied by a rule prohibiting the brakemen or other employes from taking it down when they desired to remove cars from the cripple track, unless by the consent or direction of the repair-men engaged in repairing the cars, would leave the repair-men exposed to the danger of the mistake or negligence of the brakemen. If it was left for the brakemen to determine for themselves whether there were men engaged in repairing the cars, and whether the flag might be safely removed or not, and to act upon their judgment in removing it, the chances of accident would be greatly increased.

It appears from the evidence that it was the common practice of both Donnelly and the brakemen to remove the flag when they supposed there was no one under the cars. On another occasion a repair-men came near being caught and injured in consequence of this practice. It is settled doctrine that a railroad company is bound to guard its employes against negligence of co-employes, so far as it can, by the enactment and promulgation of reasonable rules in the management of its business. The rule that the servant takes the risks of the business is subject to the qualification that the master must exercise reasonable...