Coppins v. New York Cent. & H.R.R. Co.

• Decision Date: 02 December 1890
• Citation: 25 N.E. 915,122 N.Y. 557
• Parties: COPPINS v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 557

25 N.E. 915

COPPINS

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York,

Second Division.

Dec. 2, 1890.

Appeal from a judgment of the general term of the fourth judicial department, which modified, and affirmed as modified, a judgment entered upon a verdict of a jury and denied a motion for a new trial. The plaintiff was a brakeman in the service of the defendant, and on the 10th day of May, 1880, was employed upon an express passenger train which was scheduled to pass the station at St. Johnsville at three minutes past 5 in the afternoon. The train was derailed at that point on account of a misplaced switch, and the plaintiff received injuries for which he has recovered damages in this action. There were four tracks, numbered from north to south, from one to four. The two south tracks were used for passenger trains, number two being the west bound track. The tracks were connected by cross-overs, used to pass cars from one track to the other, and the cross-overs were connected with the main track by switches. Martin Schram was one of the men employed by defendant to shift these and other switches, of which there was a large number in the St. Johnsville yard. On the day of the accident, Schram opened the switch at track two to enable a work train to cross to track one, and neglected to close it, and, before the express train was due, left the yard and went to his supper. The express train came rapidly from the east, and the engineer did not notice the misplaced switch until within 500 feet thereof, and was unable to stop the train in time to prevent its running upon the cross-over. The result was derailment, and injuries to the plaintiff. Further facts appear in the opinion.

William G. Tracy, for appellant.

Louis Marshall, for respondent.

BROWN, J., ( after stating the facts as above.)

If the evidence in this case justifies the conclusion that the engineer of the passenger train was negligent in not observing the target at the misplaced switch, or in running his train at a high rate of speed past the station in the absence of signals that the track was safe, that fact of itself is not available as a defense if negligence was established on the part of the defendant, as the law is too well settled upon principle and authority to be now questioned, that negligence of a servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed his duty. Cone v. Railroad Co., 81 N. Y. 206;Ellis v. Railroad Co., 95 N. Y. 552;Stringham v. Stewart, 100 N. Y. 516, 3 N. E. Rep. 575. We come, therefore, to the consideration of the question of defendant's negligence, and this involves an inquiry into the rules that had been adopted by defendant to insure the safe passage of trains through the St. Johnsville yard, and over the switches in question, and whether the violation of these rules, in this particular instance, can be charged against the defendant as an act of negligence on its part. The rules required that a train should not cross the passenger tracks within 20 minutes immediately preceding the arrival of a passenger train, and during that time, and until the passenger train has passed, the switches connecting with the tracks on which the train was running were to be closed and locked. Schram and one Fenton were employed in the yard as switchmen, and at the time of the accident Schram's hours of service were from midday to midnight. It was the duty of these men to open and set the switches for trains crossing the tracks, and to see that they were closed and locked previous to the arrival of trains on the main tracks. Other men about the yard had keys to the switches, and were accustomed to open and operate the switches when Schram and Fenton were engaged elsewhere about the yard. We are concerned, however, only with the duties of these men as to passenger trains that did not stop at St. Johnsville, and it is of no importance that other duties about the yard may occasionally have called them away from the switches on the arrival of other trains. As to the trains that did not stop, the evidence of the division superintendent was that it was the switchman's duty to signal those trains. The safety signals were a white flag by day and a white light by night, and the danger signal a red flag in the day-time and a red light at night. Obviously, a proper performance of this duty included an investigation into the condition of the track and switch to ascertain the fact which was communicated by the signal to the engineer in charge of the apporaching train, and the usual manner of executing the rule was thus testified to by Schram: ‘I would go down to the switch and see if it was all right about two minutes before the arrival of the train, and then return up toward the depot at the highway...