Maue v. Erie R. Co.

• Decision Date: 05 April 1910
• Citation: 91 N.E. 629,198 N.Y. 221
• Parties: MAUE v. ERIE R. CO.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 221

91 N.E. 629

MAUE

v.ERIE R. CO.

Court of Appeals of New York.

April 5, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by George Maue against the Erie Railroad Company. From a judgment of the Appellate Division (115 N. Y. Supp. 1131) affirming by divided court a judgment entered on the verdict of a jury for plaintiff, defendant appeals. Reversed, and new trial granted.William L. Marcy, for appellant.

Ford White, for respondent.

WERNER, J.

The judgment recovered by the plaintiff cannot be sustained upon the record before us, unless we are prepared to hold that it is negligence per se for a railroad corporation to maintain an uncovered underground farm crossing, regardless of its location and without reference to the manner in which the tracks are used in the particular vicinity. The plaintiff, a former employé of the defendant, brought this action under the employer's liability act (Consol. Laws, c. 31, §§ 200-204) to recover damages for injuries sustained by him at a place on the defendant's railroad known as ‘Letchworth crossing.’ The specific charge of negligence is that the defendant there maintained a dangerous opening or hole in its tracks, into which the plaintiff fell while in the proper discharge of his duty as brakeman in inspecting a train. The case is singular, in that the facts bearing upon the defendant's alleged negligence are practically undisputed. A short recital of these facts will reveal the precise point at which we think the plaintiff's evidence fails to sustain his complaint.

The defendant's railroad crosses the Genesee river upon a single track structure known as ‘Portage Bridge.’ To the west of the bridge are double tracks, and also a siding which begins at a point 550 feet west of the bridge and continues westerly for a distance of about 3,250 feet to what is known as the ‘Letchworth crossing.’ This crossing consists of an underground passageway which connects the two parts of the Letchworth estate, and its construction is of the kind known and proven to be in general use. The two sides of the passageway are flanked by walls of masonry which support stringers, upon which are superimposed the cross-ties and rails. There is no other covering over this crossing than that which is furnished by the stringers, ties, and rails where the tracks cross the underground passage. As will be seen from this description, the space between the two tracks over the underground passageway is not covered by anything. The opening is about 3 feet wide between the inside ends of the ties, and from 12 to 15 feet long between the supporting walls. At the time of the accident to the plaintiff this farm crossing had been thus maintained for a period of 28 years without mishap or casualty. At a point about 1,000 feet westerly from the farm crossing there is a yard-limit signal which indicates, as agreed by all the witnesses, that engineers are to have their trains under control upon the assumption that other trains may be within the yard limits. This yard is a regular stopping place, because the double tracks on both sides of the river converge to the single tracks across the bridge, and also because it is equipped with cranes or tanks for supplying engines with water. It is not a switching place, nor a point designated for the regular inspection of trains. The plaintiff had been employed by the defendant for a period of three years preceding the accident. He had been a brakeman upon freight trains traversing this particular part of the defendant's railroad for at least four months, had passed over this farm crossing many times, both by day and night, and was familiar with the surroundings as well as with the custom in the stoppage of trains. Having thus briefiy described the locus in quo and its usage, we now turn to a résumé of the plaintiff's story of the accident.

At 6 o'clock in the afternoon of April 25, 1906, the plaintiff left Buffalo as one of the brakemen in charge of a train of eighty freight cars drawn by two engines. The train arrived at Castile at about half-past 1 o'clock on the next morning. There the train stopped. One of the engines was disconnected, switched to a turntable, and turned for use in pushing the train on to Portage and across the bridge. While another brakeman assisted in the turning of this engine, the plaintiff began an inspection of the south side of the train. Equipped with lantern, oil can, hook, and waste, he worked from the caboose forward to the engine. In the course of his progress he discovered signs of a heated journal on the north side of the train, but, before he had time to go to that side, the train started. He stepped upon the engine and rode to the yard limits at Portage Bridge, where the train stopped. Without directions from any one, he alighted and proceeded westerly toward the caboose for the purpose of inspecting the northerly side of the train. This necessitated walking between the two tracks. After he had gone westward about 35 car lengths, he came upon a heated journal, which he began to pack and oil. While thus engaged, the train started. He continued his work on the heated journal, walking along five or six steps with the slowly moving train. Meanwhile his lantern, which he had set on the ground, went out, and he moved back to get it. He relighted the lantern and walked westward toward the rear of the train, intending to take note of the journals as they passed him. After he had taken four or five steps toward the west, he fell into the opening over the farm crossing above described, and sustained the injuries set forth in the complaint. The case, as now presented, turns wholly upon the question whether the defendant was negligent in maintaining this farm crossing without a deck or cover, and it is, therefore, unnecessary to discuss either of the other questions presented by counsel.

The undisputed evidence is that the structure known as ‘Letchworth crossing’ is a typical underground farm passageway, in general use upon the railroads of the country, and this evidence is in accord with common knowledge of the subject. Wherever farm lands have been bisected by railroad embankments, such crossings are familiar objects. It goes without saying that many such crossings are so situated that no one would think it essential to cover them for the protection of railroad employés. Railroad bridges with two or more tracks are usually left with an open or unplanked space between the tracks, unless located in a place where switching, coupling, or other work about trains necessitates the frequent, safe, and convenient passage, to and fro, of employés. In view of these general considerations, it is obviously impossible to hold the defendant responsible upon the broad ground that the mere maintenance of such a structure is, of itself, evidence of negligence, for that would involve the radical conclusion that all such structures are to be condemned as improper without regard to their use or location. It must follow, therefore, that, when the maintenance of such a structure is relied upon by a plaintiff to establish the charge of negligence against a defendant, there must be evidence of specific circumstances and conditions from which dereliction of duty may be inferred. In the application of that rule to the case at bar, the statement of a few additional facts will serve to show why the plaintiff has failed to make out his case.

It appears that Castile is a place where trains were regularly inspected. The crew in charge of this train numbered five men. The movements of none of these at Castile are accounted for except those of the plaintiff, who was engaged in his duty of inspecting the train, and of another brakeman who was busy in helping to turn the detached locomotive. The inference is permissible, if not necessary, that if this other brakeman had not been engaged with the locomotive he would have assisted in the work of inspection at Castile, and that he could have finished one side of the train while the plaintiff completed the other side. As it does not appear whether the other brakeman was acting under specific orders or in the general line of his duty in helping to turn the engine, we cannot assume that the defendant was chargeable with knowledge that the train had not been fully inspected at Castile. That being the regular place of inspection, it was not to be anticipated that, in the ordinary course of events, it would be necessary to continue at Portage Bridge, only two miles distant, an inspection begun but not finished. The natural inference would be that full inspection had been made at Castile, and that none would be necessary at Portage Bridge, beyond the casual oversight which might be dictated by prudence at any stopping place. It is entirely clear from the record that the plaintiff, in finishing his inspection at Portage Bridge, was not acting under specific orders, and the general rules defining his duties throw no light upon the question whether there was any such regular or habitual inspection of trains at that place as to charge the defendant with knowledge that Letchworth crossing was a menace to the safety of brakemen. The rule promulgated by the defendant imposing upon brakemen the duty of making couplings, attending to brakes, displaying signals, assisting in loading and unloading freight, inspecting cars, and doing all other things necessary for the prompt and safe movement of trains, is general in its application and has no particular significance as applied to the conditions which existed at Portage Bridge. The plaintiff's testimony is not more definite. It tends to show that it is a brakeman's duty at all times to see that his train is in good condition, and that there are no defects in the brakes, running gear, or other appliances. That is a fact as to which there is no disagreement in the testimony, but it is also a fact which must be considered in the light of practical...