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

• Decision Date: 24 February 1903
• Citation: 66 N.E. 568,174 N.Y. 1
• Court: New York Court of Appeals Court of Appeals
• Parties: DEVOE v. NEW YORK CENT. & H. R. R. CO.

174 N.Y. 1

66 N.E. 568

DEVOE

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

Court of Appeals of New York.

Feb. 24, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Jeanette E. Devoe, administratrix of William H. Devoe, deceased, against the New York Central & Hudson River Railroad Company. From an order of the Appellate Division (75 N. Y. Supp. 136) reversing a judgment for plaintiff and granting a new trial, plaintiff appeals. Reversed.

This action was brought to recover damages on account of the death of the plaintiff's intestate, caused, as alleged, by the negligence of the defendant. The decedent was a car inspector, and the plaintiff claimed that he lost his life because the defendant failed to make, promulgate, and enforce reasonable and proper rules for the protection of its car inspectors while they were engaged in the discharge of their duties at its Syracuse station. The defense relied upon was that a safe practice was established by the defendant at said station by the oral instructions and directions of the foreman of its car department, which obviated the necessity for more formal rules, and that the decedent was not engaged in discharging his duties as car inspector when he was injured.

Parker, C. J., and Haight, J., dissenting.

William S. Jenney, for appellant.

L. B. Williams, for respondent.

VANN, J.

At the Syracuse station of the defendant the track of the Rome, Watertown & Ogdensburg Branch of its system of railroads enters from the north, and makes a connection in the form of a Y with track No. 6, which runs east and west. On the 19th of July, 1899, at about noon, train No. 10, consisting of 9 or 10 cars, entered the station from the north, and, after standing upon track No. 6 for a few minutes, was pulled easterly so as to clear the switch at the point of the Y, and enable another train from the north, known as ‘No. 4,’ to enter upon the same track, and discharge its passengers. Train No. 10 was so long that when it was moved east far enough to clear the point of the Y it extended across Franklin street, running north and south, and interrupted travel. After train No. 4 entered, its engine was uncoupled, and proceeded westerly to the engine house. That train consisted of four cars, the most westerly being a baggage car, which was followed by a smoker and two passenger coaches. The regular engine of train No. 10 had also been detached, and a switch engine, coupled to the easterly end, backed it westerly until within 10 or 15 feet of train No. 4, when it stopped for a short time, and then backed on west to couple with that train. The decedent at this time was between the two passenger coaches of train No. 4, and when the two trains came together his head was caught, and he was injured so that he died in a short time. The jury found for the plaintiff, but upon appeal to the Appellate Division all the justices united in reversing the judgment, and in their order certified that they reversed ‘upon questions of law only, the facts having been examined, and no error found therein.’ As the evidence supports the verdict, there is nothing open to review by us, other than the exceptions relating to the evidence and the charge; and, unless one or more of these exceptions is sufficient to justify the reversal by the Appellate Division, it is our duty to reverse their determination, and affirm the judgment of the trial court. Ayres v. Delaware, L. & W. R. R. Co., 158 N. Y. 254, 258,53 N. E. 22.

Several witnesses who had been employed as inspectors upon other railroads were called by the plaintiff to show what rules had been provided by the companies operating those roads for the protection of car inspectors. In each instance a book containing the rules of the particular company for which the witness had worked was produced by the plaintiff and shown to him. In several instances it did not appear by the date upon the title page whether it purported to be the edition in force while he had so worked or not, but he testified that the rule appearing in the book upon the subject was in force, if not during the entire period of his employment, at least during the last part thereof. To the question whether that rule was in force upon the railroad in question while the witness was employed by it, the defendant objected upon the ground that it was not the best evidence, and now insists that the plaintiff should have produced ‘the actual edition of the book of rules in force during the term of the witness' employment.’ We think the exception to the rulings which allowed such questions to be answered raises no error. It was competent to show any rule relating to the subject recently in force upon another railroad. The witness in each instance testified that the rule was in force while he worked on such road and when he left it. It was competent to show by parol from the actual knowledge and recollection of the witness the rule actually enforced while he was in the employment of another railroad, and to use any edition of the company's rules to refresh his recollection. It was unnecessary to produce the manuscript of the rules as written, or the book printed therefrom. Reasoning is illogical when it leads to an absurdity.

The court charged the jury, in part, as follows: ‘It is claimed on the part of the defendant that after 1895, under Mr. Beatty, he adopted and promulgated, by giving notice to the employés, a verbal rule to the effect that inspectors should not, in the ordinary inspection, go between cars or under cars. If, however, it became their duty to go between or under cars, that then they should get another man, and station him at or near the car for the purpose of protection. That, I think, is in substance the claim of the defendant in that regard. Mr. Beatty says that an inspector had no business under a car without protection-without protecting himself by putting a man on guard; that he told them to protect themselves by having a man on guard to protect them. In the first place, it will be on this evidence for you to say whether or not any such rule was in fact made and promulgated and in force during the time that Mr. Devoe was there at work; and, if so, whether or not it was a reasonable and proper rule-such a rule as the defendant, in the exercise of ordinary care for the purpose of reasonable protection of its employés, should have made. That really involves the main question here on the question of negligence of this defendant. Was such a rule made? If so, was it a reasonably safe rule for the purpose of furnishing to the employés reasonable protection? It is said that the fact that it was not written is a circumstance to be considered. That evidence is in the case. The simple fact-the fact alone-that the rule was not printed or written, does not make it invalid. It is simply a circumstance for you to consider with all the other evidence in the case as to whether it was a proper and reasonable rule for the fair and reasonable protection of employés engaged in this class of business. Upon the whole case that is a question for you to consider.’ At the close of the charge the defendant excepted to that part which left ‘the question to the jury as to whether or not this rule which Mr. Beatty testified to was a proper and sufficientrule with reference to the inspection of cars; claiming that, obviously, if that rule had been regarded on this occasion, this accident would not have happened, and that all that was required of the defendant was to have that kind of a rule.’ After taking other exceptions, not now material, the counsel for the defendant said: ‘And we except again to the proposition that it is for any one to say whether or not that rule was a reasonably safe and proper rule.’ When the business of a master is such that the safety of one servant depends upon the way in which other servants do their work, it is his duty to make, promulgate, and enforce reasonable and sufficient rules for the protection of the servant exposed to danger. The situation at the Syracuse station of the defendant was somewhat complicated at the time of the accident in question. There were many tracks, switches, and branches. Between 50 and 60 trains came and went every day, and the car inspectors were required to inspect the wheels, running gear, couplings, safety chains, and other appliances belonging to each car of each train. There was much movement of trains at the station from one track to another; cars were taken out of one train and put into others; shifting of various kinds was done; trains were made up; and while all this was going on other trains were constantly coming in and going out. The work of car inspection is dangerous, and the necessity for rules to protect the inspectors so obvious as to be scarcely disputed. A rule known as ‘No. 38’ had been made and promulgated by the company in the following form: ‘A blue flag by day and a blue light by night, placed on the end of the car, engine or train, denote that workmen are at work under or about the car, engine or train. The car, engine or train thus protected must not be coupled to, or moved, or other cars placed in front of it, until the blue signal is removed by the person who placed it.’ This is the rule, so amended as to adapt it to passenger trains, which was considered by us the first time that the Warn Case was before us. Warn V. N. Y. C. & H. R. R. R. CO., 157 N. Y. 109, 51 N. E. 744. UPON THE first appeal we held that the rule, as it then stood, did not apply to passenger trains stopping at a station, but to cars or trains on sidings or in a yard. Subsequently the same case came before us upon a different record, and a verdict for the plaintiff was sustained. 169 N. Y. 572, 61 N. E. 1135. The rule, as quoted above, was the only rule upon the subject made or promulgated by the company, but it is conceded that it was never enforced. It is also conceded that, if it had been enforced on the occasion in question, ...