
    Annie L. Pierson, as Sole Executrix, etc., of Charles L. Pierson, Late of the City of Mount Vernon, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.
    
      JSfegligence — death from a collision — liability where the engineer was furnished with an engine so defective that it did, not generate steam sufficient to operate the brakes.
    
    In an action brought to recover damages resulting to the plaintiff in consequence of the death of her husband, it appeared that he had been a locomotive engineer for thirty-five years; that he had been employed by the defendant in that capacity for twenty years, and had for the ten years preceding his death run one of defendant’s express trains between New York city and Springfield.
    On the day of the accident he started from New York for Springfield with the full pressure of 180 pounds of steam. The engine was equipped with Westinghouse automatic air brakes under the management of the engineer. After leaving New York the engineer discovered difficulty in generating steam, and at Woodlawn he made an examination and found that there was “ a blow of the steam pipe in the smoke box.” The train arrived at Bridgeport, Conn., ten minutes late. There the steam was run up to 150 pounds and the air brakes were tried and were found to work properly. The engineer then caused a telegram to be sent to New Haven, the next station, for another engine with which to complete the trip to Springfield. About half a mile from New Haven the engineer attempted to release the air brakes, but they failed to work. The steam had run down to between 80 and 100 pounds. The engineer signaled for the hand brakes and they were applied and the engine was reversed, but the train could not he stopped and ran into the relief engine which had been stationed some 200 or 300 feet beyond the station; decedent’s engine was overturned and he was killed.
    The defendant had failed, for some days prior to the accident, to inspect the engine to see that it was in proper condition before placing it in the charge of an engineer, and the reduction of steam pressure was due to a leak which, apparently, an inspection of the engine, before it was put in use, would have disclosed.
    
      Held, that the questions of defendant’s negligence and the absence of negligence on the part of plaintiff’s decedent should have been submitted to the jury; That, as the proximate cause of the accident was the failure of the engine to properly supply steam to the air brakes, plaintiff’s decedent did not assume the risk of the defect — especially where, as in this case, the verdict of the jury established that the engineer did not know of the existence of any defect in the engine, such that he ought not to have continued to use it in the manner and at the speed shown by the evidence.
    Appeal by the defendant, The New York, New Haven and Hartford 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 Westchester on the 23d day of December, 1899, upon the verdict of a jury for $4,000, and also from an order, entered in said clerk’s office on the 21st day of December, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry W. Taft, for the appellant.
    
      Isaac H. Mills, for the respondent.
   Goodrich, P. J.:

The action was brought to recover damages received from the death of the plaintiff’s decedent, through the alleged negligence of the defendant, at New Haven, Conn., in September, 1897. The Connecticut statute bearing upon such cases is similar to the one in New York except that the maximum limit of recovery is $5,000. The plaintiff recovered a verdict of $4,000, and the defendant appeals from the judgment entered upon the verdict and from the order denying the defendant’s motion for a new trial.

Certain facts are established by the evidence. The decedent had been a locomotive engineer in the employ of the defendant for twenty years, having been employed on other roads in the same capacity for fifteen years previously. For the ten years before his death he had run an express train between New York city and Springfield every other day. On the day of the accident his train started from New York city at nine o’clock in the morning, having the full pressure of 180 pounds of steam. It was equipped with the Westinghouse automatic air brake system, under the management of the engineer. The steam pressure for these brakes was supplied from the locomotive boiler. Each car of the train had a conductor’s valve connected with the air brakes, and also hand brakes on the platforms for use in cases of emergency. These were put in operation on signal from the engineer. The schedule stops were Stamford, South Norwalk, Bridgeport and New Haven, the distance from New York to New Haven being seventy-four miles.

On the morning of the accident some difficulty was observed by the engineer and fireman in making steam, just after leaving New York and while in the Fourth avenue tunnel, it appearing that sufficient .steam was not being generated to run the train on schedule time. At Woodlawn, thirteen miles out of New York, they searched for the cause and found that there was “ a blow of the steam pipe in the smoke box.” Owing to the lack of steam, the train was six minutes late at Stamford, twelve minutes late at South Norwalk and ten minutes late at Bridgeport, where the steam pressure was 90 pounds, somewhat higher than at preceding stations. The stop at Bridgeport was longer than usual; the fire was brightened up and the steam run up to 150 pounds when that city was left. At Bridgeport, however, the engineer had caused a telegram to be sent to New Haven for an engine there to take the place of his, for the purpose of completing the trip to Springfield. The air brakes worked properly when the train left Bridgeport and there was no ” -occasion to use them again until the train was nearing New Haven.About a half mile from that station the engineer attempted to release the air brakes but they failed to work. The steam had run down to between 80 and 100 pounds. He gave a whistle signal for hand brakes, which were applied, and the fireman reversed the engine, but the train could not be stopped and ran into the relief engine which had been stationed 200 or 300 feet beyond the station where the train ordinarily stopped. The decedent’s engine was overturned and he was killed.

At the close of the plaintiff’s evidence and again at the close of the whole case, the defendant moved to dismiss the complaint, on the grounds, first, that the decedent was not shown to have been, free from contributory negligence; second, that the defendant was-not guilty of any negligence for the proximate cause of the accident ; third, that the decedent assumed any risk which was the proximate cause of the accident. The denial of this motion and. the charge raise the main points which have been argued on this-appeal.

First, as to the contributory negligence of the deceased. The-defendant’s counsel contends that the engineer knew that he ought, to save steam enough to run the air brakes; that he failed to watch the air gauge continually and thus to notice the reduction in the air-pressure and that he'did not apply brakes at intermediate points, by doing which he might have learned that there was failure of power to work the brakes. There was no direct proof of any such failure,, and at the utmost it was a question of fact to be submitted to the-Jm7-

There was a rule of the road, known to the engineer, that he must never sacrifice safety for speed. Some expert evidence was-offered which might justify the inference that the engineer had shut off the steam from the air brakes for the purpose of using the-entire power for running the train in order to make up lost time,, and that he did this to such an extent that the power was reduced below 110 pounds, which was not sufficient to supply both motive power and the air brake pressure. This also was a question of fact, for the jury.

We are brought to the questions whether the decedent was bound to act otherwise than he did after the discovery of some leak or other fact which more or less affected the power of the engine to-supply sufficient steam both for the motive power and the air brakes, and whether he took the risk of an accident resulting from running the engine in its crippled condition.

The plaintiff, from the necessity of the situation, had but one-witness, the fireman; to prove the occurrences on the engine during the trip and up to the time of the accident. At the time of the-trial this fireman was still in the employ of the defendant, and it was within the province of the jury to decide what amount of credence should be given to his evidence.

The testimony furnishes an elaborate description of the Westinghouse automatic air brake, which it is useless to repeat except to state that 110 pounds of steam power were essential to the proper working of the engine and brakes. On the engine were gauges to indicate the air pressure and also the steam pressure. When the power ran down on the steam gauge to 90 pounds it did not suffice to run the engine and charge the air brakes, but it appeared that before the train left Bridgeport steam was applied to the air brakes, which were found to work and were properly set. These brakes work by release of air which has been compressed by the steam power, and, being charged, will continue to be ready for use some minutes, although there is always more or less leakage. The jury were justified in finding that the engineer had the right to assume that the brakes would be ready for use at New Haven, after the short run of seventeen miles from Bridgeport to that place, during which time they were not used. It was not until the engineer attempted to set them, one-half mile west of New Haven, that their failure to operate became apparent. There is some evidence that when he discovered that the brakes were out of order he stepped back and looked down at the stop cock in the air pipe between the engine and the tender, but there is no evidence as to what its condition was. There is only an inference that it was in order from the fact that he went back to his position and raised his hand to the throttle, by which air was admitted to this air brake pipe. Whether he opened this throttle or not does not appear.

The testimony was such as to require the submission to the jury of all questions connected with the continued use of the engine, the running of it at high speed, and the action of the engineer in attempting to release the air brake and in signaling for hand brakes; and this was done by the court.

Second, as to the negligence of the defendant. It was its duty to furnish a safe engine, and to see that it was in order, so far as that could be done by fair and periodical inspection. The evidence clearly shows that there was no inspection of the engine for some days before the accident, other than that given to it by each engineer who from time to time was running it. On other roads, as the testimony shows, there is a daily inspection by an official employed for that purpose. The evidence of failure of inspection was such as to justify a verdict that the defendant was negligent in that respect.

In Gottlieb v. N. Y., L. E. & W. R. R. Co. (100 N. Y. 462) the court, referring to the duty of the defendant to furnish safe cars and machinery to its employees, spoke of the defect causing the accident as an “ obvious one, easily discoverable by the most ordinary inspection,” and said that it seemed to be the grossest negligence to put such cars into the train. That language seems applicable to the case at bar. There is no doubt that the cause of the reduction of steam pressure was a leak, and that the leak disclosed itself shortly after the train started. It is difficult to believe that careful inspection before the engine was put in use would not have discovered the leak ; and it was proved that there was no inspection for some days previously. Ryan, the engineer who ran this engine the day before the accident, testified that he had no difficulty and that there was no material leak; but this only raised a question for the jury.

Thvrd, as to the decedent’s assuming the risk of the defect which was the proximate cause of the collision. There can be no doubt that the proximate cause of the collision was the failure of the engine to supply steam to the air brakes. That was not an act with which the engineer is chargeable, for he had the right to assume that the defendant had discharged its duty in furnishing a suitable engine. It was the failure to furnish such an engine which must be considered the proximate cause of the collision, and the engineer did not assume any risk in connection therewith. At any rate, it was a question for the jury.

The court was requested to charge that the deceased assumed the risk of the defect in the engine, and the request was assented to with the limitation that this was true if the deceased knew of the defect. The verdict establishes the fact that he did not know of any defect in the engine of such importance that he was bound to 1 know that he ought not to continue to use the engine in the manner and at the speed shown by the evidence.

We have examined the other exceptions to the refusals to charge matters in this connection, but they all rest upon the same basis as the one just adverted to, and we find no reversible error to be predicated of them.

The defendant contends that the act of the decedent in telegraphing for a relief engine, coupled with his knowledge of the custom to station such engine in the position occupied by it at the time of the accident, placed upon him any responsibility of any danger resulting from having an engine in that position on the track ahead. There was evidence that it was the custom of other roads to place such relief engines upon a switch instead of upon the main track, but whether or not it was negligence to station the relief engine on the track in front of the moving train, the decédent had the right to rely upon the belief that he had been furnished with an engine suitable for his work, that is, an engine capable of supplying sufficient steam to work the brakes, in which case there wras no probability of running into the relief engine. The question whether the defendant was guilty of negligence upon all the evidence was properly submitted to the jury.

We iind no reversible error, and the judgment should be affirmed.

Judgment and order unanimously affirmed, with costs.  