
    Charles E. Whittaker, Adm’r, App’lt, v. The President, etc., oe The Delaware & Hudson Canal Co., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 6, 1890.)
    
    Master and servant—Negligence.
    An engine whose headlight had heen broken and removed was left upon the main track while the engineer went into the station for orders,in violation of the rules of the company. While so standing a train from the opposite direction, on which plaintiff’s intestate was a fireman, and which was running at a greater speed than the rules allowed, collided with it and plaintiffs intestate was lulled. It appeared that he was engaged at the time in procuring coal from the further end of the storage and the speed of the train was solely under the control of the engineer. Held, that the court erred in dismissing the complaint; that the question whether the absence of the headlight of the engine was an efficient cause without which the accident would not have happened should have been submitted to the jury, and that the facts would warrant a jury in finding that intestate was free of contributory negligence.
    Appeal from a judgment entered in Otsegó county after a trial at the circuit in that county where a non-suit was granted and „ complaint dismissed; and from an order made at special term on a case and exceptions denying a motion for a new trial.
    
      Louis Marshall,.for app’lt; HdwinYoung, for resp’t.
   Hardin, P. J.

When this case was before us on the former appeal, 49 Hun, 400; 22 N. Y. State Rep., 405, a verdict had been taken for the plaintiff; and we then held it was error to instruct the jury, viz: “ That even if they found that the co-employes of the plaintiff’s intestate were guilty of negligence, yet if they found that the defendant was negligent in allowing its engine to run without a head-light, and that negligence contributed to the injury, the plaintiff could recover.” In the course of the opinion delivered on that occasion, it was said, viz: “ The engineer of locomotive Ho. 82 had not received special orders permitting him to run his locomotive onto the east bound traffic track and stop it near the depot. That it was a negligent act to do this and leave the locomotive standing there unguarded so near the time when two trains were due upon the same track is quite clear.” In that case it appeared that train Ho. 28, going east, “sometimes ran through Quaker Street four or five miles an hour; generally ran through about four miles an hour, and that there was a rule forbidding the running of trains past stations at more than four miles an hour.”

It also appeared that on the occasion of the collision train Ho. 28 was running faster than ■ usual through that station ; running when they collided, eight or ten miles an hour. Upon the facts appearing in the case as it was presented to us on that occasion, it was said in the opinion, viz.: “ When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed. to a cause unless without its operation the accident would not have happened. Ring v. City of Cohoes, 77 N. Y., 90; Ehrgott v. Mayor, etc., of New York, 96 id., 264; Searles v. The Manhattan Railway Co., 101 id., 661; Taylor v. City of Yonkers, 105 id., 202.”

The opinion then proceeds to state, viz.: “ Bach of the three acts above enumerated may have been one of several causes, each contributing to the accident. The defendant is not liable to its employes for the damages resulting from two of the causes, and the jury should have been instructed that the defendant was not liable unless they found the accident would not have happened but for the absence of the head light.” We think the opinion contains nothing that justifies an inference that the defendant was not liable if the absence of the head light was an efficient cause, without the operation of which “ the accident would not have happened ; ” on the contrary, it seems that the opinion proceeded upon the assumption that the case presented questions of fact for the consideration of a jury. We are of the opinion that the case as now presented to us, and considered in the light of the opinion to which reference has been made, called for a submission to the jury.

When Cone v. D., L. & W. R. R. Co., 15 Hun, 177, was before this court, Judge Smith, speaking for this court, said: “We think the true rule is that for an injury to the servant resulting from the negligence of the master the latter is liable although by diligence on the part of a fellow servant the injurious effects of the master’s negligence might have been prevented or averted. If the injury would not have happened but for the negligence of the master, contributory negligence on the part of the fellow servant is no defense to the master. Within that rule the defendant is liable in this case. Not only would the injury not have happened if the engine had been in suitable condition, but in that case no negligence could have been imputed to the engineer.” That case was affirmed and the doctrine approved in 81 N. Y., 210. See also Coppins v. N. Y. C. & H. R. R.. R. Co., 48 Hun, 292 ; 17 N. Y. State Rep., 916; Senior v. Ward, 1 Ellis & Ellis, 385; Pennsylvania Co. v Conlan, 101 Ill., 93; Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 546 ; Stringham v. Stewart, 100 id., 516.

(2) We are of the opinion that whether the plaintiff’s intestate was guilty of contributory negligence or not on the occasion of the loss of his life was a question of fact for the jury. We think it error to declare upon the evidence found in the appeal book as a matter of law that the intestate was guilty of contributory negligence. Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y., 199; 19 N. Y. State Rep., 80. The intestate was performing his duties; he was engaged in getting coal from the far end of the storage and moving it with a shovel to the fire when the collision took place; and the train had begun to slow up and its speed appears to have been solely under the management of the engineer and not at all in the command or control of the deceased. The facts disclosed by the evidence would fully warrant the jury in finding that the intestate was free of contributory negligence. We are of the opinion that the case ought to have been submitted to the jury.

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

Martin and Merwin, JJ., concur.  