McCarthy v. Pennsylvania R. Co.

• Decision Date: 14 June 1907
• Citation: 189 N.Y. 170,81 N.E. 770
• Parties: McCARTHY v. PENNSYLVANIA R. CO.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 170

81 N.E. 770

McCARTHY

v.PENNSYLVANIA R. CO.

Court of Appeals of New York.

June 14, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Daniel F. McCarthy, as administrator of the estate of Andrew F. McCarthy, deceased, against the Pennsylvania Railroad Company. From a judgment of the Appellate Division, Fourth Department (101 N. Y. Supp. 1129), overruling plaintiff's exceptions, denying his motion for a new trial, and ordering judgment for defendant on the verdict, plaintiff appeals. Reversed, and new trial granted.

The plaintiff's intestate, a fireman upon one of defendant's locomotive engines, was killed in a ‘head-on’ collision, which occurred on the defendant's railroad between Delevan and Lime Lake on the 25th day of July, 1904. The defendant's railroad has its northerly terminus at Buffalo, and runs thence in a southerly direction through various towns and villages in this state to the city of Olean, and from thence into the state of Pennsylvania. Beginning with Protection on the north, and going south, the various stations which are within the zone of this controversy are Chaffee, Arcade, Delevan, Lime Lake, Machias, Franklinville, Cadiz, Ischua, Hinsdale, and Olean. This stretch of railroad consists of a single-track line, except at Buffalo for a distance to the south and at Olean for a distance to the north, where there are double tracks, and between these termini there are various sidings. The defendant, prior to July 25, 1904, had adopted and promulgated rules for the running of its trains, and those which are material to the issue at bar were as follows:

‘500. Special orders, directing movements varying from, or additional to, the time-table, will be issued by the authority and over the signature of the superintendent. They are not to be used for movements that can be provided for by rule or time-table. They must not contain information or instructions not essentially a part of them.

‘501. Each order must be given in the same words to all persons or trains directly affected by it, so that each shall have a duplicate of what is given to the others. Preferably an order should include but one specific movement.’

‘503. Orders must be addressed to those who are to execute them, naming the place at which each is to receive his copy. Those for a train must be addressed to the conductor and engineman, and also to a person acting as pilot. A copy for each person addressed must be supplied by the operator.

‘504. Each order must be written in full in a book provided for the purpose at the superintendent's office; and with it must be recorded the names of trainmen and others who have signed for the order, the time and signals showing when and from what offices the order and responses were transmitted and the train despatcher's initials. These records must be made at once on the original copy, and not afterward from memory or memoranda.’

‘525. Operators will promptly record and report to the superintendent the time of departure of all trains, and the directions in which extra trains are moving. They will record the time of arrival of trains, and report it when so directed.’

‘26. Green signifies caution, and is a signal to go slowly.’

‘36. Two green flags by day and two green lights by night, displayed in the places provided for that purpose on the front of an engine, denote that the train is followed by another train running on the same schedule, and entitled to the same time-table rights as the train carrying the signals.’

‘112. When signals displayed for a following train on single track are taken down at any point before the following train arrives, the conductor must inform the superintendent promptly by telegraph, and also the operator or switchman; and the latter, unless there is some other provision for the purpose, must notify all opposing trains of the same or inferior class leaving that point before the train arrives for which signals were displayed.’

‘109. All messages or orders respecting the movements of trains or the conditions of track or bridges must be in writing.’

‘218. Train despatchers report to and receive their instructions from the superintendent. It is their duty to issue telegraphic orders for the movement of trains in the name of the superintendent; see that they are transmitted and recorded in the manner prescribed; and have a record kept showing the time each train passes each telegraph office.’

‘217. Train masters report to and receive instructions from the superintendent. It is their duty to take charge of the movement of the traffic; exercise supervision over the men employed on the trains; see that they understand and observe the rules, and suspend them when necessary for neglect of duty; * * * and see that proper precautions are taken to ensure the safety of trains and property.’

Further facts appear in the opinion.

George E. Spring and James T. Ward, for appellant.

Frank Rumsey, for respondent.

WERNER, J. (after stating the facts).

As indicated in the foregoing recital of facts, this action is brought to recover damages for the death of an employé, alleged to have been caused by the negligence of the defendant, employer. The specific charge of negligence, stated in various forms in the complaint, is that the defendant omitted to adopt, promulgate, and enforce proper rules, regulations, and precautions for the operations of its trains, and that in consequence of this neglect of duty the collision occurred which resulted in the death of plaintiff's intestate. The learned court at Trial Term directed a verdict for the defendant, upon the theory that the death of plaintiff's intestate was caused by the negligence of a co-employé, and ordered plaintiff's exceptions to be heard at the Appellate Division. In that tribunal the plaintiff's exceptions were overruled by a divided court, and from the judgment entered upon that decision the plaintiff has appealed to this court.

This case belongs to a class of cases governed by principles of law that have become axiomatic. The difficulties which beset the courts in the disposition of such cases are, not in the law, but in it adaptation to the endless variety of facts to which the law must be applied. In every such case the plaintiff comes into court invoking the rule that it is the master's duty to exercise reasonable care to provide his servant with a safe place in which to work, with proper tools and appliances with which to work, with competent fellow servants with whom to work, and with such rules and regulations as are needful for the proper control of these various agencies; and in every such case the plaintiff is met with the defendant's assertion of the rule that a servant assumes all the risks of his employment, which are as obvious to him as they are to the master, as well as all other risks which are necessarily incident to his employment after the master has fulfilled all the obligations imposed upon him by law. In the case at bar the plaintiff predicates his right to recover upon the defendant's failure to adopt and enforce proper precautions for the safety of its trains and those employed upon them. The defendant asserts it right to judgment upon the plea that it had done all that was required of it in that behalf, and that the death of plaintiff's intestate was due to the negligence of his co-employés in failing to observe and obey the rules under which its trains should have been operated. A clear understanding and correct decision of the issue thus framed requires a minute statement of some further facts.

Train No. 156 was one of the defendant's regular freight trains of the third class, which, on the day of the accident, was running southerly in four sections from Buffalo, which is designated as ‘GD Tower,’ to Olean which is called ‘AD Tower.’ Train 6,324 was an extra freight, upon which plaintiff's intestate was fireman, running northerly from ‘AD Tower’ (Olean) to ‘GD Tower’ (Buffalo), under a general order to run ahead of third class trains going in the same direction. The movements of the first section of train 156 are not...