
    Sanford White, Respondent, v. The Lewiston and Youngstown Frontier Railway Company, Appellant.
    
      Negligence — assumption by a conductor of the risk of the employment of an intemperate motorman—admissions made by an employee as to past ocaumnaes are not competent against Ms employes'—proximate cause of an accident.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff while employed as conductor on one of the defendant’s, electric street cars, in consequence of his car running off the track at the terminus of the line, it appeared that at the time, of the accident one O’Brien, the motorman in charge of the car, had intrusted the performance of his duties to one Hack, an employee of the defendant, and that Hack was incompetent to perform those duties. There was evidence to show that O’Brien was habitually intemperate and was intoxicated at the time of the accident.
    The plaintiff’s theory was that O’Brien intrusted Hack with the performance of his duties because he, O’Brien, was then intoxicated, and that he would not have done so if he had been sober. ,
    
      Held, that as the plaintiff had knowledge of the intemperate habits of O’Brien, he assumed the risk of working with O’Brien;
    That as the evidence of the plaintiff's knowledge of O’Brien’s intemperate habits was given by the plaintiff, the defendant was entitled to the benefit of such evidence, notwithstanding the defendant’s failure to plead the assumption by the plaintiff of the risk incident to O’Brien’s intemperate habits;
    That evidence given by the plaintiff's wife of a conversation with the defendant’s superintendent, subsequent to the accident, as to the superintendent’s knowledge of the intemperate habits of O’Brien prior to the accident, which evidence was introduced, not for the purpose of impeaching, the superintendent, but as original evidence of notice to the defendant, was incompetent.
    
      Semble, that the defendant’s negligence in retaining O'Brien in its employ was not the proximate cause of the accident.
    Appeal by the defendant, The Lewiston and Youngstown Frontier Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 11th day of Hay, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 23d day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Louis L. Babcooh and Rogers, Loclee & Milburn, for the appellant.
    
      P. F. Kvng and King, Leggett <& Brown, for the respondent.
   Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.

The action was brought to recover damages for personal injuries to the plaintiff alleged to have been caused by the negligence of the defendant.

Defendant was operating a street railroad from- Lewiston to the government reservation, a little north of Youngstown in Niagara county. The plaintiff was a conductor upon one of its cars. The end of the track at the reservation was in the woods, and there was no bumper or other obstruction to.prevent a car from running off the track. There was a hollow at the end of the track about three feet deep. On the occasion of the accident the car approached the end of the track and the front end went off into the hollow. The plaintiff sttiod on the rear platform and was thrown down and injured by the accident. The motorman, who had charge of the power upon the car, left his position at Youngstown and permitted one Hack to handle the power and run the car down to the reserva^ tian, where the accident occurred. 'The ground of negligence alleged and upon which a recovery was had was the employing and continuing in its employ an incompetent motorman, knowing him to*be such. It was claimed that O’Brien was a habitually intemperate man; that he was intoxicated at the time of the accident, and the accident was the result of such intoxication. The accident occurred in October, 1899. The plaintiff and O’Brien entered the defendant’s employ when the road was opened in 1896. The plaintiff had been a conductor all the time. O’Brien was at first a trackman, worked in various other positions and three or four months before the accident became motorman of a freight motor. He worked in that capacity until a week before the accident, when he was transferred to a passenger car as motorman. The plaintiff and O’Brien worked together on this same, car for the week before the accident, making seven round trips each day. The accident occurred between seven and eight o’clock in the evening. The car was a closed one, with a baggage compartment at the front end. There was a partition between the baggage and passenger compartments. The plaintiff from his position on the rear platform could not see who was' running the car as motorman after it left Youngstown. There was evidence to warrant the finding by the jury that O’Brien was for some time before the accident habitually intemperate, and incompetent by reason of such habit to act as motorman, but the plaintiff seems to have been aware of O’Brien’s habits before and at the time he commenced and while he continued to be motorman on his car. In his talk with Sims, the defendant’s superintendent, plaintiff designated O’Brien as a -drunken motorman. There was evidence upon which the jury were justified in finding that O’Brien was under the influence of liquor and was intoxicated at the time of the accident. It is, however, difficult to see just how his condition was the cause of the accident. The only theory is that he left the power to Hack because he was so intoxicated; that he would not have done so except for his condition, and that the accident occurred because Hack and not O’Brien was running the car. Hack was an employee of the defendant, was somewhat accustomed to acting as motorman and had run cars down over this part of the road on other occasions prior to the accident. There was some evidence that he too was under the influence of liquor at the time the accident occurred. The car was being run by Hack rapidly, and he apparently did not shut off the power Soon enough to stop the car before it went off the end of the tracks.

The verdict upon the merits must be supported upon the theory of the negligence of the defendant in having O’Brien in its employ as motorman, he being habitually intoxicated and incompetent. By reason of his being kept in defendant’s employ he was in charge of this car, and by reason of his being intoxicated he intrusted the power to Hack, and by reason of Hack’s incompetency the accident occurred. Therefore defendant’s negligence caused the accident. This will hardly do. It is doubtful if as a matter of law it can be said that in this condition of things the defendant’s negligence was not the proximate cause of the accident if it was the cause at all. It can hardly be said that the causal connection between the defendant’s negligence and the accident was broken by the interposition of independent, responsible human action. Hack was placed in control of the power by O’Brien, the defendant’s servant. He did not assume to take control of it Avithout O’Brien’s direction. If he had done so the rule as to proximate cause, as claimed by the plaintiff, would be applicable.

In Laidlaw v. Sage (158 N. Y. 73) Sage was in no Avay responsible for the dropping and explosion of the bomb. That is a fair illustration of the rule. We are in a good deal of doubt, however, whether the jury were justified in finding the accident was the result of the defendant’s negligence at all; that is, that it was a natural result of the defendant’s negligence, in keeping in its employ a habitually incompetent employee. To be more specific, could the jury fairly infer that O’Brien put Hack in charge of the power because he, O’Brien, was then intoxicated, and would not have done so if he had been sober and that the accident occurred by reason of Hack’s incompetency. It is very doubtful if a verdict based upon. this finding should be sustained, and this finding is absolutely essential to support the verdict.

We are, however, of the opinion that the judgment and order must be reversed for two reasons other than that already discussed.

First. The plaintiff assumed the risk of working with O’Brien. So far as he was incompetent by reason of his intemperate habits plaintiff testified himself that he had knowledge of such incompetency all the time. It was not necessary to plead assumed risk under the circumstances of this case, if it is in any case. Here the evidence was given by the plaintiff, not by the defendant, and being in the case the defendant might have the benefit of it. The question was raised upon the motion for nonsuit.

Second. The evidence given by plaintiff’s wife of a conversation with Sims, the defendant’s superintendent, subsequent to the accident, as to his, the superintendent’s, knowledge of the intemperate habits of O’Brien before the accident was clearly incompetent. It was merely as to admissions by an employee as to past occurrences, for which the defendant was not responsible. The evidence was not given to impeach the superintendent but as original evidence of notice. (Kay v. Met. St. Ry. Co., 163 N. Y. 447; Luby v. Hudson River R. R„ Co., 17 id. 131; Goetz v. Met. St. Ry. Co., 54 App. Div. 365; Taylor v. N. Y. C. & H. R. R. R. Co., 63 id. 586 National Bank of Rondout v. Byrnes, 84 id. 100.)

It is said that this evidence being given to show notice to defendant of the habits of O’Brien, prior to the accident, was competent under Vandewater v. Town of Wappinger (69 App. Div. 325) and Shaw v. Town of Potsdam (11 id. 508).

Those cases apparently were not reviewed by the Court'of Appeals. They are not well considered and are in conflict with the, general rule adhered to since Luby v. Hudson River R. R. Co. (supra) was decided, as shown by the cases above cited and many other cases referred to therein.

For the errors hereinbefore referred to the.judgment and order should be reversed and a new trial granted, with Qosts to appellant to abide event, on the Jaw and the facts,

McLennan, P. J., and Stover, J., concurred; Spring, J., concurred in result upon the ground of the admission of incompetent evidence; Hisoock, J., concurred in result upon the grounds of assumption of risk and the admission of incompetent evidence.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  