Sutherland v. Troy & Boston R. Co.

• Decision Date: 24 February 1891
• Citation: 26 N.E. 609,125 N.Y. 737
• Parties: SUTHERLAND v. TROY & BOSTON R. CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 737

26 N.E. 609

SUTHERLAND

v.TROY & BOSTON R. CO.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from supreme court, general term, third department.

Action by Rebecca Sutherland, as administratrix of Mark Sutherland, against the Troy & Boston Railroad Company for the alleged negligent killing of plaintiff's intestate in a collision. Plaintiff had judgment in the circuit court, which was affirmed by the general term, and from its judgment defendant appeals.

John H. Peck, for appellant.

Chas. E. Patterson, for respondent.

PER CURIAM.

The collision which occasioned the casualty was at a point about two and one-half miles east of Petersburgh Junction. If the presence of the trains No. 1 and No. 6 at the place of collision was attributable in any degree either to the omission by the company to make suitable and adequate regulations for the running of its trains, or to the omission of the train dispatcher at Troy to exercise proper care to notify train No. 1 to await at Petersburgh Junction the arrival of train No. 6, a case was made out on the point of the defendant's negligence. But this would not sustain the action, provided the presence of train No. 1 at the place of collision was to any extent attributable to the negligence of Sutherland, the plaintiff's intestate. It would then be the case of concurring negligence on the part of the company and the person injured. We are inclined to the opinion that it was a question for the jury on the point of the defendant's negligence. It is true that if Johnson, the telegraphic operator at Petersburgh Junction, had strictly followed rule 38, and obeyed the order to ‘flag and hold train No. 1,’ the accident would not, in all probability, have happened. He, however, interpreted the order as designed to hold No. 1 for No. 2, and not generally; and when No. 2 had arrived, and he had procured permission from the train dispatcher at Troy to permit No. 2 to pass on to Hoosick, then, supposing the original order fulfilled, he did not replace the red flag, as he ought to have done. But the red-flag signal was one of the means of notifying an approaching train to stop; but, when special orders were given to control the running of trains, upon the observance of which the lives of persons depend, the jury, we think, had a right to determine whether the company bad discharged its whole duty by giving the order to the operator, without communicating it to the trainmen at some point before the train reached Petersburgh Junction, which, so far as appears, might have been done after the order to hold the train had been made. The jury, within the cases of Sheehan v. Railroad Co., 91 N. Y. 332, and Dana v. Same, 92 N. Y. 639, were entitled to say whether the company performed the full measure of its duty, in view of all the circumstances, in taking no means to notify train No. 1 of the order, except by the order to Johnson, relying exclusively on his performance of his duty.

The contributory negligence of Sutherland is the difficult point in the case. If this question was not in the case, we think the judgment would have to be reversed for error in submitting to the jury the question of the competency of Johnson. The only suggestion of his incompetency made by the plaintiff is founded upon the fact that he was but a little over 17 years of age. It was shown that he had had more than a year's experience as telegraph operator; that for more than three months prior to the accident he had been the operator of the defendant at this point, and had discharged his duties intelligently, to the entire satisfaction of the company; that the compnay employed him on the recommendation of the manager of the Western Union Telegraph Company at Rutland, and of the train dispatcher of the D. & H. R. Co., and that he was perfectly conversant with the rules, and was a ‘first-class operator;’ and it also appeared that young men were generally better operators than older men. The plaintiff did not undertake to controvert the proof of the defendant on the subject. We think, under the circumstances, the jury could not be permitted to infer that Johnson was incompetent in fact from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake...