Dowd v. New York, O.&W. Ry. Co.

• Citation: 170 N.Y. 459,63 N.E. 541
• Parties: DOWD v. NEW YORK, O. & W. RY. CO.
• Decision Date: 08 April 1902
• Court: New York Court of Appeals

170 N.Y. 459

63 N.E. 541

DOWD

v.NEW YORK, O. & W. RY. CO.

Court of Appeals of New York.

April 8, 1902.

Appeal from supreme court, appellate division, Fourth department.

Action by Mary Dowd, administratrix of Michael Dowd, against the New York, Ontario & Western Railway Company. From a judgment of the appellate division (70 N. Y. Supp. 1138) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover damages sustained by the plaintiff through the death of her intestate, caused, as alleged, by the negligence of the defendant. The answer, after a specific denial of all the allegations of negligence on the part of the defendant, alleged that the death of the decedent was caused by his own negligence and that of his fellow servants. At the village of Sidney, in this state, the defendant's railway intersects that of the Delaware & Hudson. There is so much traffic between the two roads at this point that the defendant maintains a yard in order to provide for the storage of cars and the handling of trains. The yard consists of several side tracks connected by switches with the main line, and constructed upon a grade descending grandually toward the north for convenience in moving cars by gravitation. Some freight and many coal cars were usually stored upon the sidings, and, if any needed such slight repairs as could be conveniently made away from the shop, it was the duty of the car repairers to attend to them while they thus stood in the yard. For the protection of the repairers while thus engaged it was provided by a rule known as ‘No. 38,’ that: ‘A blue flag by day and a blue light by night, placed on the end of the car, denotes that car inspectors are at work under or by the car or train. The car or train thus protected must not be coupled to or moved until the blue signal is removed by the car inspectors.’ There were other rules, of which the following were read in evidence upon the trial: ‘Rule No. 25. Red signifies danger, and is a signal to stop.’‘Rule No. 5. The fact that any person enters or remains in the service of the company will be considered as an assurance of willingness to obey its rules. No one will be excused for the violation of any of them, even though not included in those applicable to his department.’ For eight or nine years prior to the accident which gave rise to this action the custom prevailed in the defendant's yard of ‘kicking’ cars, or trains of cars, from the main branch onto the sidings. This custom was general; and there was another, but less general, to kick trains in on sidings where car repairers were at work, even when the blue signal was up. Cars were kicked by backing them rapidly from the main track onto the siding, suddenly detaching the engine, and leaving them to run on the descending grade by gravitation and their own momentum. On the 31st of August, 1892, the plaintiff's intestate had been in the employ of the defendant as a car repairer for about six weeks, but not continuously. On that day, shortly after noon, he was at work under a car situated near the middle of a train consisting of 25 empty coal cars standing without an engine on siding No. 3. A blue as well as a red flag was flying at the rear or southerly end of the train. A milk train, consisting of an engine, express car, passenger car, and three or four milk cars, came in at this time, and stopped at the station to transact its usual business. It was a little late, and, after discharging the passengers and freight, the engineer ran south past the switch, and then, as was his custom, backed rapidly, severed his engine, and kicked the train upon siding No. 3. Of the three trainmen belonging to this train, but one remained thereon to manage the brakes, and he was unable to control its movements. After some delay, he succeeded in setting the hand brake, and then struggled with an air brake, but without success. The result was that the milk train ran down the grade without control, until, colliding with the empty cars, it shoved them forward about two car lengths, and caused one of them to run over the plaintiff's intestate as he was working under it, and injured him so severely that he died within a few days. Upon the trial the jury was instructed to find whether the defendant furnished to the decedent a reasonably safe place to work; whether its rules were sufficient under the circumstances, or whether it was its duty to make further regulations for the safety of the repairers; and, finally, whether the decedent knew, or ought to have known, of the danger of repairing a car under the circumstances which surrounded him when he was injured. The jury found for the plaintiff, and, after affirmance by the appellate division, one of the justices dissenting, the defendant came to this court.Udelle Bartlett and P. W. Cullinan, for appellant.

Elisha B. Powell and Louis C. Rowe, for respondent.

VANN, J. (after stating the facts).

The practice of kicking cars from one track to another, upon which men are at work, and so situated that they cannot see the approaching danger, was recently condemned by us as dangerous and reckless. Doing v. Railroad Co., 151 N. Y. 579, 583,45 N. E. 1028. We held that, when such a practice is known to the company, it is bound, in the proper discharge of its duties toward its employés, to guard against it by proper rules and regulations so far as reasonable and practicable. Judge O'Brien, writing for the court upon this branch of the case, said: ‘We will assume, then, what cannot be questioned, that the workmen were doing the defendant's work in a dangerous and reckless manner. But these workmen were doing nothing but what, according to the testimony, they had been doing for years before. If the defendant permitted its employés to carry on its operations upon these three tracks outside the shop in such a manner as to endanger the lives of those inside, who could not protect themselves, it failed to discharge to the deceased the duty which the law imposed upon it of furnishing him a reasonably safe place to do his work. The defendant had the power to control and regulate its business. The law imposed upon it the duty of making and enforcing such reasonable rules and regulations for the government of the men in its service as to prevent or guard against injury by one servant to another in so far as that was reasonable and practicable. It could certainly put an end to the practice of propelling cars upon these tracks by a force that could not be controlled, and it could provide for moving them in some other and safer way. In other words, it could change this method of doing the work by making proper rules and regulations to that end. The jury could have found from the evidence that the practice of kicking or shunting cars upon these tracks in the direction of the doors of the repair shop was known to the defendant. The danger to be apprehended from such a practice was so obvious that the defendant, in the proper discharge of the duties which it owed to its employés, was bound to guard against it by proper rules and regulations so far as that was reasonable and practicable.’ The case now before us does not differ in principle from the one cited, for in both the car repairers were so situated that they could not see the approaching train, and the practice of kicking cars had prevailed so long that the company is presumed to have known of its existence. In the earlier case there were no rules pertaining to the subject, as the jury might have found, and in this case the jury found that the rules were insufficient. We think they were justified in so finding. While the rules of the defendant might be adequate for the protection of standing cars from an approaching train, which, having an engine attached, could be controlled, the inference was permissible that they were inadequate as against a train moving without an engine on a descending grade, through momentum acquired before the engine was cut off. Signals alone will not stop a train, as they are simply notice to stop. Cars moving without an engine have no inherent power to stop, but must be stopped by brakes, blocks, or similar appliances. Miscalculation by the engineer or trainmen as to the force applied, or necessary to be applied, by either; the failure of the brakes, for any reason, to work promptly or efficiently; a temporary absence of one or more trainmen; or any error of judgment or slight accident resulting in the loss of a few seconds of time,-might permit the moving cars to crash into those standing on the same track, and kill or main the repairers working thereunder in ignerance of their danger. With an engine attached, however, the movement of the train would be under control, and the hazard greatly reduced. When dangerous work is to be done, the care should be proportionate to the danger, and reasonable precautions taken to protect human life. The principle that servants assume the risks of the business is qualified by the duty of the master to protect them from unnecessary hazards, including the negligence of fellow servants, by making such reasonable rules as the situation requires. Abel v. Canal Co., 128 N. Y. 662, 28 N. E. 663. The evidence authorized the jury to find that the defendant had not discharged its entire duty in this regard, and that some further regulation was required to protect the car repairers from the danger arising from the practice of kicking cars, which for years had prevailed in this yard. A rule prohibiting the running of a train, without an engine attached to control it, upon a track occupied by standing cars when repairers are at work on them, or forbidding the kicking of cars on a track thus occupied, would doubtless...