Danbois v. New York Cent. R. Co.

• Decision Date: 21 February 1963
• Citation: 238 N.Y.S.2d 921,189 N.E.2d 468,12 N.Y.2d 234
• Parties: , 189 N.E.2d 468 Robert F. DANBOIS, Respondent, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 921

238 N.Y.S.2d 921

12 N.Y.2d 234, 189 N.E.2d 468

Robert F. DANBOIS, Respondent, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

Court of Appeals of New York.

Feb. 21, 1963.

Lawrence Conboy, Watertown, for appellant.

Leonard H. Amdursky, Oswego, Barney B. Schwartz, Syracuse, and John P. Chwalek, Oswego, for respondent.

VAN VOORHIS, Judge.

This grade crossing accident occurred on Route 3A at what is known as Herrings Crossing, a short distance east of Deferiet and about six miles west of Natural Bridge. The single railroad track runs north and south. Plaintiff proceeded west on the two-strip concrete highway. To the north of the crossing is a siding which serves a lumber yard of the St. Regis Paper Company. Twenty-nine freight cars had been left on this siding to be picked up by defendant's freight train of 30 cars which had lfet Ogdensburg at two o'clock in the afternoon of November 8, 1957, and stopped at Herrings Crossing at 5:00 P.M. The 30 cars on the train were cut off and shunted north of the crossing where they or some of them were left standing while the locomotives picked up the cars of the St. Regis Paper Company. The point of switch over from the paper company's siding is 39 feet north of the highway crossing of Route 3A where the accident occurred. The switching or 'shifting' operation occupied from 30 to 45 minutes before the accident. It required crossing the highway repeatedly by the two diesel engines and freight cars. At about 5:30 P.M. in the darkness plaintiff ran into the sixth or seventh car of the train behind the locomotives. The engineer testified that 'It was a windy night * * * Terrible raining wind blowing * * * about as bad a night as I have ever seen * * * real dark'. The conductor testified that 'It was storming, raining terrible, like in sheets'.

At the time of the accident the switching or shifting operation, as the jury could find, had been almost completed. The freight train had been re-formed, after picking up the St. Regis Paper Company's cars, and had started on its way southward. The conductor was still on the ground with a flashlight at some distance north of the crossing checking the brakes of the freight cars as they slowly passed him, to make sure that they were released before he was to go aboard the caboose. This was the standard practice in that kind of an operation. From these facts the jury could find that the switching or shifting operation had not been completed when the accident occurred.

The importance of this point derives from operating rule 103 of the railroad which is the main bone of contention. The pertinent portion of it reads as follows: 'when shifting over public crossings at grade not protected by a watchman, or by manually operated gates, or manually operated flashing light signals, a member of the crew must protect the crossing.'

The admission of this rule was objected to as incompetent and immaterial and without foundation, and the defendant excepted to all references to it made in the charge.

No member of the crew protected this crossing. There was no watchman and no manual or automatic signals. The Trial Justice instructed the jury that the railroad was to be judged by the standard of reasonable care, in conjunction with which they might consider rule 103 as 'a standard that the railroad sets itself for its employees,' but that violation of the rule, if it was violated, 'is not in and of itself negligence' and that whether or not a violation would be negligence depended upon whether they found that it set a standard which reasonable prudence required. If the rule set a higher standard than that, the jury were told that the rule would not avail the plaintiff.

In saying that these instructions proper and that rule 103 was correctly admitted into evidence, we shall review briefly the law on this subject as it has been decided in this and other jurisdictions.

In New York State operating rules were held to be admissible by the Second Department in Sullivan v. Richmond Light & R. R. Co., 128 App.Div. 175, 112 N.Y.S. 648. More recently they were denied admission in the Fourth Department in Taddeo v. Tilton, 248 App.Div. 290, 289 N.Y.S. 427, in an opinion by Justice Edgcomb, which cited all the applicable New York State law until that date. Still more recently, the Second Department came to the same conclusion in Rizzo v. Long Is. R. R. Co., 14 A.D.2d 927, 222 N.Y.S.2d 230, in denying a motion to compel the production before trial of operating rules and regulations for inspection on the ground that they are not evidence. The First Department compelled their production in Newman v. New York City Tr. Auth., 7 A.D.2d 628, 179 N.Y.S.2d 151. The Third Department has held such rules to be competent evidence in Wilson v. State of New York, 14 A.D.2d 976, 221 N.Y.S.2d 354, motion for leave to appeal den. 11 N.Y.2d 643, 226 N.Y.S.2d 1026, 181 N.E.2d 461 as well as in Bertrand v. Delaware & Hudson R. R. Co., 267 App.Div. 228, 46 N.Y.S.2d 78. The opinion in the latter case by Justice Crapser discusses the operating rule with which we are presently concerned, calling for protection of highway crossings where there is no watchman when a train is 'shifting'. Although that case held that the train involved in it was not being 'shifted', and that consequently the rule would not apply, it is plain from the opinion that the rule would have been regarded as relevant and competent if it had been violated.

The New York cases excluding operating rules stem from McGrath v. New York Cent. & H. R. R. R. Co., 59 N.Y. 468, and a statement in an opinion by Chief Judge Hiscock in Longacre v. Yonkers R R. Co., 236 N.Y. 119, 140 N.E. 215, 28 A.L.R. 1030. That case involved injury to a youngster who went upon the front platform of a streetcar and jumped off from the platform while the streetcar was in motion. The court held that a rule that the doors opening on the platform should be closed to keep passengers from riding on the platform was not designed to prevent accidents like that, but was to avoid interference with the motorman by passengers lest they divert his attention from operating the streetcar. The opinion does contain this comment (p. 125, 140 N.E. p. 217, 28 A.L.R. 1030), which was not necessary to the decision: 'As is well argued by respondent's counsel the more cautious an employer is, and the more carefully he regulates the conduct of his employees, even though far beyond what the law requires, the more subject he will be to liability because some employee fails to obey the rule.' We are not dealing, be it noted, with the limited situation where knowledge of an operating rule by an injured member of the public, and reliance upon its being observed, affect a quesiton of his contributory negligence. We are concerned with the broader question whether such a rule may constitute an index of the care which is to be required under the circumstances, and whether it may properly be considered by the triers of the fact in determining the general issue of whether reasonable care has been taken. It may well be that such a rule should be excluded if, as matter of law, it transcends the area of reasonable care. It seems unrealistic, however, to treat such rules as this as applying only to the crews of trains without bearing upon the relationship of the railroad to the general public. For one thing, such rules may be said to be part of the res gestae as being an integral part of the operation of trains. There are many railroad cases where absence of rules had been held to be evidence of negligence in instances where reasonable care would have called for the adoption of suitable rules, e. g., Devoe v. New York Cent. & H. R. R. R. Co., 174 N.Y. 1, 66 N.E. 568. The case last cited also holds that it is competent in establishing standards of care to show what rules have been adopted by other railroads, at least in a case involving injury to a railroad employee. To similar effect are Reed v. Davis, 249 N.Y. 35, 162 N.E. 576 where the...