Lacroy v. New York, L.E.&W.R. Co.

• Decision Date: 15 March 1892
• Citation: 30 N.E. 391,132 N.Y. 570
• Parties: LACROY v. NEW YORK, L. E. & W. R. Co.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 570

30 N.E. 391

LACROY

v.NEW YORK, L. E. & W. R. Co.

Court of Appeals of New York, Second Division.

March 15, 1892.

Appeal from supreme court, general term, fifth department.

Action by Frank T. Lacroy, a brakeman, against the New York, Lake Erie & Western Railroad Company for personal injuries. From a judgment of the general term affirming a judgment entered on a verdict for plaintiff, defendant appeals Reversed.

James H. Stevens, Jr., for appellant.

John G. Record, for respondent.

PARKER, J.

April 25, 1887, a train crew, of which the plaintiff was a member, consisting of an engineer, fireman, conductor, and four brakemen, undertook to take a train of 40 cars, loaded with coal, from Brockwayville to Bradford, a distance of between 60 and 80 miles. One of the rules of the company then in force, relating to the duties of brakemen, provided that they should ‘assist in the shifting and making up trains, and, before starting, must test the hand-brakes, and see that they are in proper condition and work easily, and see that the train signals are in good order and ready for immediate use.’ Before starting this train from Brockwayville the brakemen, of whom the plaintiff was one, did not, nor did any of them, test the hand-brakes; so, when the train moved out, whether they were in good working order or not the brakemen were not informed. At Johnsonburg, about 28 miles distant, the cars were usually inspected, but on this occasion such precaution was omitted, although the train was on a side track for nearly two hours. But such omission did not prompt the brakemen to test the brakes, although it appears from their testimony that with such heavily laden cars the brakes frequently get out of order after a train has started towards its destination. Until the train reached Freeman's switch each of the four brakemen had charge of the brakes on 10 cars, the plaintiff having charge of the last 10. At that place one of the brakemen was injured, and thereafter the plaintiff took charge of the last 20 cars of the train. From Crawford's Junction there is a down grade in the direction in which the train was running for a distance of nearly 6 miles, averaging over 100 feet to the mile. At some places the incline is greater than at others, and there are a number of sharp curves and some reverse curves. The plaintiff's witnesses unite in testifying that the grade was so steep and the curves so numerous that, in order to take a train of 40 loaded coal-cars down, it was necessary to have from 30 to 35 brakes in good working order. plaintiff had, in the capacity of brakeman, had more or less experience in taking trains down Shanty hill, and that the plaintiff had, in the capacity of brakeman, taken part in running trains up and down this hill for seven or eight years prior to the date of the accident. Yet when Crawford's Junction was reached, from which point this steep descent began, with full knowledge of the dangers incident to an attempt to take such a train down without having 30 or 35 brakes in good working condition, and well knowing that the brakes on heavily loaded cars are apt to get out of order while a train is in motion, neither the plaintiff nor his associate brakeman had made any effort to test the brakes for the purpose of ascertaining whether they were in condition to do the work about to be required of them. As the train left Crawford's Junction the brakemen commenced to set the brakes, and then, according to their testimony, ascertained for the first time that a number of them would not work. But it was then too late to either repair them or sidetrack the cars having the defective brakes, as was the custom, for the train was beyond control. Realizing the danger of the situation, the brakemen employed their best efforts to check the rapid movement of the train, but without avail, and its speed kept on increasing, until it was running at the rate of 60 miles an hour, when the greater portion of the train was thrown from the track, the cars piled on top of each other, resulting in great loss of property to the defendant and personal injury to the plaintiff.

It is the contention of the plaintiff, who was one of the responsible actors in the occurrences which resulted in such serious damage to the property of the defendant, that it should also respond to him in damages for his personal injuries. It is not contended that the defendant omitted to provide suitable rules and regulations for the management of its railroad, nor that it omitted to employ competent and skillful men to keep its railroad apparatus in proper working order, and to operate its trains, and, if it had appeared that its rules and regulations had been put in possession of these several brakemen with nstructions to real and observe them, this case would have been brought within the rule laid down in Byrnes v. Railroad Co., 113 N. Y. 251, 21 N. E. Rep. 50, and the defendant absolved from liability. But, in the absence of such proof, the learned trial court reached the conclusion that, if the plaintiff did not have actual knowledged of the existence of the rules, he could not be held responsible for his failure to test the brakes, and might recover. That question he...