
    Emma Cooper, as Administratrix, etc., of Judson M. Cooper, Deceased, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
    
      Negligence—failure to set the brakes on a ear on a siding — act'of a fellow-sermnt— employment of an incompetent conductor.
    
    Where the proximate cause of the death of a fireman of a freight train is the violation by the conductor of another freight -train of a rule and custom of their employer, a railroad corporation, to set the brakes upon cars left on a siding, the conductor having backed his train on a siding against cars' which subsequently rolled down a slight grade on to the main track and caused a collision by which the fireman was killed, the railroad corporation is not liable, the injury in such case having been caused by the negligence of a co-employee of the fireman.
    The fact that the accident occurred when the conductor was making his first trip as conductor over the route in question, and after he had gone over it but once before upon a trial trip, does not, because of his ignorance of the grade of the side track, make the railroad corporation liable for the injury, on the ground of its having employed an incompetent servant, where it appears that the conductor ha'd already served four years as a conductor of freight trains upon another division of the same road; that his record was good, and that he was familiar with the rule of the railroad company and the practice of its employees as to the setting of brakes upon cars which had been moved upon any side track on the road.
    Appeal by the defendant, The New York, Ontario and Western 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 Oswego on the 18tli day of January, 1897, upon the verdict .of a jury for $15,000, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis E. Carr and P. W. Cullman, for the appellant.
    
      L. W. Baker, for the respondent.
   Follett, J.:

This action was begun February 29, 1896, to recover damages occasioned by the death of the plaintiff’s intestate, her husband, caused, it is -alleged, by the negligence of the defendant.

The accident which caused the death arose out of the following facts: The Chicago Limited, No. 5, a passenger train from New York city running north, was due at Bernard’s Bay at one-fifteen a. m., August 18, 1895. Trains Nos. 5 and 30 were due to meet and pass at twelve-fifty-three a. m. at Sylvan, a station a few miles east of Bernard’s Bay, but No. 30 being late, its conductor was directed to place' his- train on the side track at Bernard’s Bay and wait until No. 5 had passed, which'he did. Standing on this side track were fifteen or twenty empty coal and freight cars, in two groups, left there on the morning of August seventeenth. Conductor Covey ran his train, No. 30, down the main track 'to the east end of the siding and backed it west on to the siding, and in doing so backed against the empty cars standing thereon and moved them a short distance to the west, so as to make room for his train, No. 30, on the siding.

Rule 311 reads ás follows :

“ 311. They (freight conductors) must be sure that no cars have become detached from their trains on the main track. When cars are left on a siding they must see that the brakes are put on tightly, to prevent them from being moved.”

Plaintiff’s, witness, Covey, testified : “ I suppose it was a part of my duty to put brakes on these (cars which he had moved); as I was unacquainted with the. grades of the road I should have used that precaution.” And the undisputed evidence is that for a long time prior to August 18,1895, the practice had been that when cars standing on a side track were moved by a train entering thereon the conductor was required to see that the brakes were set on the cars which were moved before they were left. ' On the.occasion in ques-’ tion Conductor Covey did not set or cause to be set the brakes on the cars which he had moved, and the result was that after his train left the side' track and passed east on the main track two empty gondola cars - rolled eastward on the side track, down to the main track.

August 18, 1895, Judson M. Cooper, plaintiff’s intestate, was employed as fireman on freight train No. 29, which met and passed No. 30 at Cleveland, the next station, about three miles east of Bernard’s Bay; and when No. 29 reached Bernard’s Bay it collided with the two gondola cars which had escaped on the main track, killing the plaintiff’s intestate:

The plaintiff on the trial sought to recover on the grounds: (1) That defendant was negligent in not having a “ derailing switch ” at the east end of the side track ; (2) that defendant was negligent in not promulgating and enforcing necessary rules for the management of its business and the safety of its trains; (3) that defendant was negligent in allowing Albert E. Covey to act as conductor on trains Nos. 30 and 31.

The learned trial judge ruled correctly that the evidence was insufficient to authorize the submission of the first and second grounds, upon which a recovery was sought, to the jury, and the case was sent to the jury upon the theory that the evidence was sufficient to authorize a finding that the defendant was negligent in permitting Albert E. Covey to act as conductor of the train. There is no dispute about any material fact in the case, and from the evidence it is clear, I think,, that the accident was caused solely by the neglect of Albert E. Covey and the employees of train No. 30 to set the brakes on the cars standing on the side track which they moved. This negligence was that of co-employees with the plaintiff’s intestate, and for their negligence the defendant was not liable to the plaintiff’s intestate, as was correctly held by the learned trial judge.

The issue upon which the plaintiff’s right to recover depended, was whether William C. Ilartigan, defendant’s superintendent of the northern division of its railroad, was negligent in- employing Albert E. Covey to act as conductor on that division. Covey was called as a witness by the plaintiff, and he testified that he entered the service of the defendant in 1887 and continued therein until August 18, 1895, the date of the accident, for a period of eight years. During the first two years he was. a car repairer; during the next two years a brakeman on the northern division, and for about four years was a conductor of freight'trains running between Mayfield, Penn, (which is three miles south of Carbondale), and Norwich. The defendant’s superintendent gave substantially the same account of Covey’s services, and also testified that his record was good. It is not asserted that, during his long service, he had been guilty of negligence or of misconduct, and it is conceded that he possessed sufficient intelligence and was competent to discharge the duties of a conductor of freight trains. The sole ground upon which it was sought to have the jury find that he was incompetent to conduct this particular train, was that he had insufficient knowledge of the road between Norwich and Oswego to justify his employment thereon.

In August, 1895, Covey applied to the superintendent of .the northern division for a freight train on that division, and was directed to go over it on a freight train and familiarize himself with the service. August 13,1895, he left Norwich for Oswego on a freight train, went to Oswego and returned to Norwich August 14, 1895, and on the seventeenth he was directed by the superintendent to take freight train No. 31 to Oswego, and return therefrom to Norwich with train No. 30.*

It was asserted on the trial, and is now1 asserted, as a ground for sustaining this .verdict, that the proximate cause of the accident was the want of knowledge of Covey of the fact that this side track was not level, but sloped from the west towards the east so that cars on which brakes were not set might roll down to the east end of the side track.

The plaintiff called an engineer, who testified that this side track is 1,724 feet long, and that the east end thereof is 4 feet lower than the west end thereof; that is, that there is a descending grade from the west end to the east end of 4 feet in 1,724 feet. This grade is so slight that it would not be observed by ordinary observers, and, indeed, the evidence is that, when standing at the west end of the side track, it apparently descends towards the west instead of towards the east. Besides, it is a matter of common knowledge that, when standing on a railroad track with a slight grade, it is impossible to tell in which direction the track descends¡

It is not asserted that Albert E. Covey made any error in running trains 30 and 31, except his failure to see that. the brakes were applied to the cars which he moved before leaving them.

. I am unable to see any connection between his neglect to set the brakes on those cars and the fact that he had never before run a freight train over the northern division. For four years before the accident he had been a freight conductor, familiar with rule 311;. and familiar with the practice of the defendant’s employees that,' when cars were moved on side tracks, the brakes must be set before they were left. He so testified. The cause of the accident was his omission to set the brakes on the cars which he moved, in obedience to the rule and the practice long enforced by the defendant. This rule, and practice related to all side tracks on the whole road, whether they were level or on grades.

It appears by undisputed evidence that trains Nos. 30 and 31 were well manned by Albert Connors, engineer, Baulif, fireman, Henry Jones, head brakeman, J. M. Wheeler, middle brakeman, and Albert Haight, flagman. This crew, with the exception of Albert E. Covey, conductor, had long been engaged in running freight trains over the northern division, and Connors, Jonés and Haight testified that they were familiar with the division, its stations and its side tracks. Haight was so familiar with the division and efficient that he had been employed as an extra freight conductor on the division.

At the close of the plaintiff’s case the defendant moved that the complaint be dismissed, which was denied, and the defendant -excepted, which motion was renewed at the .close of the evidence and again denied, and the defendant excepted. The- denial of this motion was error, for which, without considering the exceptions to the charge, the judgment should be reversed.

The intestate was thirty-four years of age and in good health. He left a wife thirty-two years of age, a son ten years of age, and ■a daughter eight years of age. He had been employed by the defendant as a fireman for a little over three years, receiving during the first year one dollar and seventy-five cents per day ; during the second year one dollar and eighty-five cents per day, and during the third year two dollars per day. Before becoming a fireman he worked in defendant’s roundhouse as a wiper, receiving one dollar per day. The verdict was excessive, and vastly more than a just compensation for the pecuniary injuries resulting from the decedent’s death, to the person or persons for whose benefit the action is brought.”

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

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.  