
    William E. Baird, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—.injury where a brakeman, required to flag a twain, failed to do so because of epilepsy — chairge as to previous ca/re on the brakeman’s pa/rt—death of the officers hawing knowledge of the epilepsy — a verdict, for §11,000 heldmot to be excessive. ■ .
    
    In an action brought to recover damages for injuries sustained by the plaintiff while employed as a fireman on one.of the defendant’s passenger trains, in consequence of the failure of a brakeman on a freight train, which had met with an accident while traveling on the same track as the passenger train, to go back át least half a mile with a red light to warn all approaching trains, as required by the defendant’s rules, the liability of the defendant was claimed to arise.out of the fact that thejbrakeman was subject to epileptic fits and-t-hat. in consequence thereof he was incompetent to perform the duties .of his. employment.
    
      Held,, that it was not error for the court to refuse to charge that, if the brakeman exercised reasonable cafe and showed ordinary ability, care and prudence in the performance of his duties before the time of the accident, the plaintiff could not recover.
    
      Semble,, that if the charge of.incompetency was made on the. alleged ground that the brakeman was habitually careless and neglectful of duty, the fact that he had never been careless or neglectful before the accident would be a perfect answer to the charge. '
    The fact that some of the: officers of the defendant to whom notice of the brakeman’s condition was given had died, is immaterial. . .
    Where it appears that the plaintiff was a strong, healthy man at the time that.he was injured, and was earning from $80 to $90 a month, and that as a result-t-bereof his" right arm has been rendered practically useless, and that since the time of the accident, a period of ten years, he has been unable to do much work; that his actual money loss during this time has been some §7,300, and that his injuries will be permanent, a verdict for $11,000 will not be set aside as excessive.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 27th day of December, 1900, upon the verdict of the jury, and also from an order entered in said clerk’s office on the 27th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Leroy B. Williams, for the appellant.
    
      William S. Jenney, for the respondent.
   Rumsey, J.:

The action was brought to recover damages for injuries received by the plaintiff on the 22d of November, 1891. The action was begun on the 22d of October, 1892. It was tried in March, 1895, and a verdict for $4,000 was rendered for the plaintiff. The judgment entered upon that verdict was set aside because of an error in the charge of the court. . The case upon that appeal is reported in 16 Appellate Division, 490. A new trial was had in December, 1900, as the result of which the jury rendered a verdict for the plaintiff for $11,000. A motion for a new trial was made and denied and judgment entered for the verdict, and this appeal is taken from that judgment and from the order denying the new trial.

The plaintiff was a fireman employed by the defendant engaged upon an express train running from Syracuse to Albany, leaving Syracuse at eight-ten o’clock p. m. The accident occurred between Canastota and Wampsville. The train going east was upon No. 1 track, which is the most southerly of the four tracks of the defendant’s road at that place, and is the track ordinarily used by eastbound passenger trains. No. 2 track, which is the one. next north, is used.by west-bound passenger trains, and No. 3 is the west and No. 4 the east-bound freight tracks. A freight train also going east had been shifted for some reason over upon No. 1 track upon which the plaintiff’s train was running, so that between Canastota and Wampsville the freight was ahead of the plaintiff’s train. Just after passing a curve a short distance beyond Canastota, the freight train broke in two; and when that occurred it was the duty of the rear brakeman of the freight to go back at least a half mile with a red light to warn all approaching trains of the obstruction upon the track. The rear brakeman in this particular case' was one Sanford E. Brown.

The ground of negligence, which is insisted upon by the plaintiff, is that Brown, the rear brakeman, whose duty it was to take the red light back at least a half mile from the rear of the. freight train, did not do it; but took a position only a few car lengths from, the end of .his train and so close that the signal, even if seen, would not have enabled the engineer to stop his train in time to avoid a collision. The plaintiff, realizing that the negligence of Brown would not of itself be sufficient to entitle him to recover, takes the further position that Brown was not competent to perform the duties of rear brakeman, and that his in competency was known to the defendant’s officers who had hired him, or that they had such knowledge of his incompetency that they should not have engaged him.

The litigated question in the case was whether Brown was income petent and whether that fact was known to the officers of the defendant or should have been known by them. We are satisfied that there was sufficient evidence to warrant the jury in finding that Brown was not a proper man for his position, and that the defendant’s officers who hired him knew that to be the fact or had such information that they should have known that he was incompetent.

The only question, therefore, is whether the exceptions taken by the appellant are well taken, and if not, whether the damages are excessive. The exceptions will be considered in the order in which they are presented in the appellant’s brief. Park, the engineer in charge of the engine of the passenger train, testified that he was on the watch for signals as he came to this curve, and gave a clear statement of the conditions on that night and the manner he was running and the efforts he made to ascertain the existence of any signals. He testified with great clearness that there was a mist or fog which extended six or eight feet above the rails; that the steam dome, bell and sand box on his engine obstructed the view to some extent; that when he had got one-half or one-third of the way around this curve he saw a red bulls-eye light on the rear of the freight train and a green light close beside it. Before that time he had seen no signal whatever. He said that he knew that the signal seen at that time indicated that there was something on the track with which he was likely to come into collision. He testified that he had his hand on the throttle at the time he saw the signal; that he shut off the steam at once, reversed his engine, put sand on the tracks which were greasy, and almost immediately, seeing that he was so .close that a collision could not be avoided, he jumped from his engine:

The defendant, having given evidence tending to show that Brown had given the signal properly as required by the rules, at the distance which it is conceded would probably have been sufficient to enable Park to stop his train, insists that the accident was caused by the failure of Park to see the signal given by Brown, and that that failure constituted negligence on his part; that it was the proximate cause of the accident, and that being so, the plaintiff could not recover because the accident was caused solely by the negligence of a co-employee.

Undoubtedly if the defendant’s premises are correct that the signal was given by Brown and that the accident was caused by the failure of Park to see it as he ought to have done, then the plaintiff could not recover; but the reason why he could not recover in that case is not because Park failed to see the signal, but because the defendant’s employees had done all that they were required to do; that is to say, the signal was given, which for some reason was not seen.

The court charged the jury that if Brown gave the signal at the place required by the rules, the defendant had done all that it was required .to do, and under no circumstances could the plaintiff recover. When that charge was made, so that the jury understood, as was clearly proper, that the defendant was not an insurer that the signal should be seen, but was- only called upon in the performance of its duty to the plaintiff to have the proper signal given, the question of Park’s negligence was entirely taken out of the case, and was of no importance.

The question was also submitted to the jury whether or not Brown was an incompetent man for the position of brakeman, the jury being told that if he were a proper and competent man,, the defendant was not liable whether he gave the signal or not. The incompetency was claimed to arise from the fact that Brown was subject to epileptic fits, the result of which was frequently to put him in such a condition that he was not able to perform the duties of his place. The evidence tended- to show that he had frequent attacks which left, him in a stupid and sleepy condition and inattentive to his duties; that this condition had grown upon him to such an extent that it was' understood by the men with whom he worked that he was not tp be depended upon to do the things which his employment called upon him to perform. Whether that was h-is condition was a question submitted to the jury.

It appears from this that the incompetency of Brown arose, not from the fact that he was habitually inattentive to his duties, but that his mental and physical condition was such that he could not be depended upon to do those things which he ought to do. • There being evidence tending to show that the condition of Brown -had been brought to the attention of the officers of the defendant who had hired him, the court was asked- to charge that, if Brown exercised reasonable care and showed ordinary ability, care and prudence in the performance of his duties on the defendant’s road before the time of this accident, there could be no recovery in the case. This was refused and an exception taken.

Undoubtedly, if the mere question had been whether Brown’s incompetency was caused by his carelessness and habitual neglect of duty, the fact that he never had been guilty of carelessness or neglect of duty would have been a perfect answer to -the charge. But that was not the point of the plaintiff’s claim. That claim was .that Brown -was in such a mental and physical condition that he was likely at any moment to become- unable- to perform the duties of his employment as a result of that disease. If that were true,, the jury might have found that that condition made him an improper person to intrust with such important duties. The incompetency arose from the fact that he was likely at any moment to be unable to perform his duties, and,, therefore, while the fact that up to that time he had not become unable to perform them was very cogent evidence tending to prove that it was unlikely that- he would become unable to do so, yet it .was -only-a matter for the jury to consider in that regard, and did not necessarily preclude the plaintiff from recovering when he had made it appear by other proof that Brown might fail at some unforeseen time, when his failure might produce just such results as happened here.

The distinction is right here. When the only claim of the incompetency is that the man in question is incompetent because he is careless and reckless (and inattentive, the fact that he never has been careless, or reckless, or inattentive, is a perfect answer to such a charge. But where the charge is that he, although in his natural condition a careful and attentive man, is afflicted with a disease the effect of which may at any moment make him incompetent, it is for the jury to say whether it was negligent of the defendant to employ a man in such a condition, although up to that time there had been no failure to perform his duties.

In reply to a request by the plaintiff’s counsel, the court charged that notice to an officer of the defendant company was notice to the company, and the defendant could not be relieved from responsibility so far as the question of actual notice of Brown’s incompetency was concerned, by reason of the fact that different men were its officers at different periods of time. The evidence tended to show that Brown was employed at two different times by the company, and that notice of his condition was given to several officers at various times, and that some of these officers were dead and that none of them had paid any attention to the information. There is no objection to the charge of the court in that matter. The defendant could only act through its officers, and when notice was given to any of the proper officers of the mental condition of Brown, whatever it was the duty of that officer to do should have been done. Undoubtedly if it had Brown would not have continued in the employment of the company any longer, so the question whether the particular person to whom the notice had been given was dead or not was a matter of no importance, because when that notice was given to any of the officers of the corporation and it failed to act, it was guilty of negligence in that regard and was chargeable from that time with any injury which might result to any one because of such negligence.

We have examined the exceptions' to the evidence which are relied upon. They are substantially , all of the same character, and amount to complaints that what was said to the different officers-of the defendant from time to time were not shown to be true, For instance, it was said that complaint was made to Major Priest,- who was a subordinate superintendent having charge of the hiring of Brown, that at one time Brown had been told to flag a train and had not done it. But there was no evidence when that particular act of negligence took place. The plaintiff had given evidence of many instances in which it was Brown’s duty to flag trains and he had not done it. If that were true, when notice of the fact was brought to the, proper official, it was his duty to make inquiries to ascertain, not whether any particular instance was true, but whether the man was accustomed to perform his duties in the way he should. At least the jury might have said that such was the duty of the official.. When, therefore, it appeared that Brown was generally in the. habit of failing to. flag trains it was sufficient to warrant the jury in coming to the conclusion that the- defendant had notice of the fact that Brown was not a man to be relied upon to perform his duties if its officers were told so, whether in any particular case the complaint was well founded or not.

-There are, other exceptions which we do not regard as material, and the result is that there was no error committed to the prejudice of the defendant, and that the case was properly submitted to .the jury. .-

The only other question is the question of damages. This injury occurred in 1891, almost ten years ago. ■ The plaintiff recovered a verdict of $4,000 in 1895. The present verdict was $11,000. The injuries are exceedingly serious. There is no dispute but that they will be permanent. The defendant gave no evidence ten ding in the slightest degree to explain or contradict the evidence of the plaintiff’s witnesses in that regard. His right arm was rendered practically useless; the bone was split, a portion of the head remaining in the socket joint and the remainder thrown out so that it could not be replaced, and there was, a compound fracture which required that a - portion of the bone be taken out. Since the time of the ' accident he has been able to do very little. For months after the accident he could do nothing. After a time he obtained employment as a commercial traveler, but was not able to; do very much in that regard, and for a long time his efforts resulted in losing money. instead of making it. He was a strong, healthy man at the time he was hurt; he had been four years upon the railroad, and was-receiving from $80 to $90 a month. It may fairly be assumed that he was in the line of railroad promotion ; but admitting that he was not, the wages he was receiving if continued from that time down to the present would have amounted to about $9,800. The entire amount he has been able actually to earn is $2,400. It does not. appear how much his doctoras bills were, but it is quite clear that they must have amounted to a considerable sum. Indeed, the necessity of employing a physician on account of this accident has not yet entirely ceased. But it is evident that his actual money loss has been something over $7,300. It is quite clear that he will never be able to earn any considerable amount of money. It is to be remembered that the injuries were received nine years before the time of the last trial and that during all that time he has been a serious sufferer; that he will never recover, and that we have abso-1 lately an accurate notion of the amount of his actual damages down to the time of the trial. We think, therefore, taking everything into consideration, that the verdict for $11,000, which is all that he will ever receive as compensation for his loss of earning power, for his many years of pain and suffering, the expenses of the trials, is not too great, and that it would not be a proper exercise of our discretion to set aside the verdict, particularly as the trial judge did not see fit to do so.

The judgment and order appealed from should, therefore, be affirmed, with costs.

All concurred, except Williams, J., not voting.

Judgment and order affirmed, with costs.  