Hankins V. New York, L.E.&W.R. Co.

Decision Date05 June 1894
Citation37 N.E. 466,142 N.Y. 416
CourtNew York Court of Appeals Court of Appeals
PartiesHANKINS v. NEW YORK, L. E. & W. R. CO.


Appeal from supreme court, general term, fifth department.

Action by Edward W. Hankins against the New York, Lake Erie & Western Railroad Company. From a judgment of the general term (22 N. Y. Supp. 1120, mem.) affirming a judgment for defendant (8 N. Y. Supp. 272), plaintiff appeals. Reversed.

W. H. Henderson, for appellant.

James H. Stevens, for respondent.


The nonsuit in this case was granted on the ground that, assuming the negligence of the train dispatcher, the plaintiff cannot recover, because it was the negligence of a fellow workman. Whether the train dispatcher bore that relation to the plaintiff is, in truth, the only question in the case.

The facts are not complicated, and those which we regard as material are as follows: The division upon which the accident happened extends from Dunkirk, on the west, to Hornellsville, on the east. The plaintiff was a fireman on a freight train (No. 340), which on the 19th of October, 1887, had started from Dayton, and arrived at Salamanca (a station on defendant's road, and within the above-named division) early in the morning, on its way east, towards Hornellsville; but the train had left Dayton and arrived at Salamanca several hours behind its schedule time, and its movements since leaving Dayton had been entirely controlled by special telegraphic orders from the train dispatcher, at his office, at Hornellsville. At 7:57 of the day mentioned the engineer and conductor of this train received, while at the Salamanca station, an order by telegraph from Hornellsville, and signed by the division superintendent and the train dispatcher, which order directed them to ‘meet trains 341, 339, and 349 at Carrollton, ahead of train 348.’ Carrollton was a station a few miles east of Salamanca. The train consisted of 113 cars, and was about half a mile in length, and it started to go east as far as Carrollton, under the above order, very soon, or within a few moments after the order was received. The west-bound train, No. 341, had arrived at Carrollton several hours behind its regular time, and it was also being run by special telegraphic orders from the train dispatcher's office at Hornellsville. While at Carrollton, on its way west, the conductor and engineer of this train received their telegraphic order at 8:43 a. m., which directed them to ‘meet train 334 at Carrollton, 348 at Salamanca; not pass Salamanca without orders.’ It was the duty of the conductor and engineer of this train, upon receipt of the order, to move their train west to Salamanca. This they at once proceeded to do. Neither the engineer nor the conductor has any voice in running a train by special order. They are simply charged with the duty of carrying out the orders that come to them from the train dispatcher's office. These orders to the conductors and engineers of the trains Nos. 340 and 341 were at once attempted to be carried out by them, and in consequence thereof the two trains came into collision not far from Carrollton, and between 9:05 and 9:10 a. m.

The plaintiff was fearfully injured, his leg being almost torn from his body, and he pinned down between the engine and tender, and very badly scalded by the hot water from the boiler of his engine. Amputation near the thigh was soon after performed; and the plaintiff, as might be assumed, suffered great agony from the injury, and is rendered a maimed and wrecked individual for the balance of his life. There is no question of contributory negligence in the case, and it cannot be contended that the plaintiff was at the time of the accident engaged in anything other than an honest and careful performance of his duty. If these orders were negligently given, the sole question as to defendant's liability becomes one of law. There was enough evidence as to negligence on the part of the train dispatcher in the giving of the orders to require the submission of the question to the jury, provided the defendant ought to be held liable for his negligence. It frequently becomes very difficult to determine whether the particular act, in any case, is that of the master, in his character as such, or is only that of a mere fellow servant. It is not a question as to the rank of the individual who gives the order or performs the act. The question is one as to the character of the order or act,-whether it is one which is given or performed as an order or act of the master, in his character as such, or only as an order or act delegated by the master to another, and performed by such other as an employe. The rule as to the liability of the master for the act of a servant is well known. Church, C. J., said in the Flike Case that the master must be held liable for negligence in respect to such acts or duties as he is required to perform as master, and without regard to the rank or title of the agent whom he has intrusted with its performance. Flike v. Railroad Co., 53 N. Y. 549. This language was repeated in Crispin v. Babbitt, 81 N. Y. 516, where the liability of the master for the negligence of his servant, by which another servant has suffered injury, was said not to depend upon the doctrine respondeat superior, but upon the omission of some duty of the master which he has confided to such inferior employe. If the act omitted were of the kind which the master owed to the employe the duty of performing, he would be responsible to the employe for the manner of its performance. It is not a question of rank among the different employes. The rule thus laid down has been since frequently approved in this court. Slater v. Jewett, 85 N. Y. 62;Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905. Its application to a particular case is sometimes difficult, and the boundary line between an act of the master and an act of the employe is sometimes quite vague and shadowy. In this case the evidence would seem to be quite conclusive that the defendant had fully discharged the duty which it owed its employes in the way of establishing and promulgating appropriate and sufficient rules and regulations for the government and operation of the various trains upon its road, and its furnishing general time-tables pertaining thereto. Whether the train dispatcher violated one or all of such rules is not material, in the view we take of the case, because the defendant had not performed its whole duty in promulgating rules, nor is a defense made out when it is shown that if the train dispatcher had obeyed the rules...

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