
    Winfield E. Bossout, App’lt, v. The Rome, Watertown & Ogdensburgh Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department
    
    
      Filed July 1, 1890.)
    
    Master and servant — Negligence.
    Plaintiff was a brakeman on a passenger train, and was injured by a collision with a freight train. Both were running on the same track, and it was the duty of the flagman to stop the freight train far enough east to allow the other train to take the switch. He signalled the freight train, and then signalled the passenger train to come on, and the collision occurred before the switch was reached. It was claimed that the flagman was incompetent and that defendant was negligent in employing him. A nonsuit was granted on the ground that this was not shown, and that plaintiff was in a position to be chargeable with knowledge of the flagman’s incompetency. Held, error; that the questions should have been submitted to the jury.
    (Mabten, J., dissents.)
    Appeal from a judgment entered in Jefferson county, January 2, 1890, upon an order of the court at Jefferson circuit, December 1889, upon the trial of the case before the court and a jury, dismissing the complaint upon the merits. The action is for negligence.
    
      D. G. Griffin, for app’lt; Edmund B. Wynn, for resp’t.
   Merwin, J.

The plaintiff was injured on the 12th day of 'September, 1887, by the collision of a passenger train of the defendant, upon which he was a brakeman, with a freight train of the defendant, at or near the Mill street crossing in the city of Watertown. It was alleged that the cause of the collision was the omission of one Joy, an employee of the defendant, -and the flagman at that crossing, to give the proper signal to the freight train to stop. This train was coming from the east, and on the main track. The passenger train was coming from the west on the same track, but designed to take the switch near that crossing that would bring it upon the branch leading to Carthage. In order to allow this to be done, it was necessary for the freight train to stop far enough eastward to allow the passenger train room to come forward and take the switch. The flagman was there, and made some signal to the freight train, and then signalled the passenger train to come on.

The result was that both trains came on and the collision occurred before the passenger train reached the necessary point to enable it to take the switch. This was at mid-day, and apparently nothing existed to prevent the flagman doing his duty, assuming he was competent. His duty was, before he signalled the passenger train to come on, to see to it that the freight train had fully stopped far enough eastward to allow the passenger train to take the desired switch. Whether he did this was, we think, upon the evidence, a question of fact.

The claim of the plaintiff is, that the flagman was incompetent for the performance of the duties entrusted to him; that, by reason of such incompetency, the accident happened, and that the defendant was negligent in his employment and in retaining him, and therefore chargeable with the results of his acts.

At the close of the plaintiff’s evidence, the defendant moved for a nonsuit upon the ground that no negligence was shown on the part of defendant in the employment of the flagman or that the flagman was incompetent. This motion was, at that stage of the case, denied. At the close of the evidence it was renewed upon the same grounds. Thereupon the order was made dismissing the complaint, it being suggested that the plaintiff was in a position to be chargeable with knowledge of the flagman’s incompetency, and that the flagman had in fact stopped the freight train and was, therefore, not negligent. .

A careful consideration of thé evidence, as it is presented before us, leads to the conclusion that the case should, have been submitted to the jury. It was a question of fact whether the collision was caused by the negligence of the flagman, whether such negligence was due to his incompetency, and whether the defendant was guilty of negligence in employing or retaining him. The defendant was bound to exercise reasonable care in such employment, having respect to the particular duties and responsibilities of this locality, and if it failed to do this and loss occurred by reason of such failure without fault on the part of the plaintiff, the defendant would be chargeable. Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y., 362.

It was also a question of fact whether the plaintiff, by reason of his opportunity of seeing the flagman in the performance of his duties, was chargeable with knowledge of his incompetency.

The defendant further claims that a release executed by the plaintiff on the 13th January, 1887, is a bar to this action. This point was not taken on the motion for a nonsuit. This release was executed while the plaintiff was in the employ of the defendant, and is in form like the one in Purdy v. R., W. & O. R. R. Co., 52 Hun, 267; 23 N. Y. State Rep., 469, decided by this court The circumstances of this case do not, upon this, subject, vary materially from the Purdy case. The point, therefore, is not well taken.

Judgment reversed upon the exceptions and new trial ordered, • costs to abide the event.

Hardin, P. J., concurs.

Martin, J.

(dissenting). This action was founded on the alleged negligence of the defendant. The plaintiff was injured by a collision between a freight train and a passenger train, which were running on the defendant’s railroad. The alleged cause of the collision was the omission of the defendant’s flagman to give the proper signal to stop the freight train so as to allow the passenger train to move forward far enough to pass over a switch on to another track.

It was the duty of the flagman to give the danger signal to stop the freight train, and then to give the passenger train the safety signal so that it might proceed to make the switch. So far as there was any proof on the subject it was to the effect that the flagman gave the freight train the proper signal and that it stopped in obedience to it. While some of the witnesses testified that they could not say that the train came to a full stop, others testified that it did. None testified that it did not, nor that the danger signal was not given.

The proof tended to show quite conclusively that after the flagman had signaled the freight train and it had stopped, he then turned towards the passenger train and gave it the safety signal, and thereupon the engineer on the freight train, as well as the engineer on the passenger, train, started his engine and a collision followed. This proof may have tended to establish negligence on the part of the engineer of the freight train, but it did not show negligence in the flagman. If the engineer was negligent, the plaintiff cannot recover, as it is neither alleged nor proved that the defendant was negligent in employing him or continuing him in its employ.

I am of the opinion that the court properly held that the evidence was insufficient to justify it in submitting the question of the defendant’s negligence to the jury. I have examined the exceptions taken by the plaintiff to the rejection of evidence to which he has called attention, but have found none that would justify a reversal of the judgment. I think the judgment should be affirmed.

Judgment reversed and new trial granted, costs to abide the event.  