
    (80 Hun, 490.)
    DRAKE v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department
    September 27, 1894.)
    1. Evidence—Hearsay.
    In an action by a brakeman for injuries resulting from a collision alleged to have been caused by the failure of defendant to provide another employe with a proper lantern with which to signal plaintiff’s train, plaintiff cannot testify as to what the other employs said about the lantern.
    2. Master and Servant—Injuries to Servant—Neglect oe Rules.
    Where a railroad company has furnished adequate rules governing the conduct of its employes, it is not liable for injuries to an employs caused by failure to observe such rules.
    Appeal from circuit court, Schenectady county.
    Action by William A. Drake against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on an order dismissing the complaint, plaintiff appeals. Affirmed.
    Plaintiff’s cause of action, as set out in his complaint, is as follows:
    “Paragraph 1. For complaint this plaintiff, upon his information and belief, states that the defendant is a corporation organized under the laws of the state of New York for the purpose of operating a railroad between New York City and the city of Buffalo, and for over ten years last past have operated a railroad and run trains between those cities to carry passengers and also to transport freight. Par. 2. That on the 19th day of February, 1889, and for a long time prior thereto, the plaintiff had been in the employ of said defendant; that on said 19th day of February a freight train, number 48, started from Buffalo on said railroad for the east, upon which one Patrick Fox was employed by the defendant as a brakeman. and whose duty it was to carry a signal to the rear in case any accident or detention should happen to that train. Par. 3. This plaintiff further states, upon his information and belief, that the said Fox was not a fit or competent person to be employed by said defendant to perform that duty, of which the defendant had due notice. Par. 4. This plaintiff further states that on the morning of February 19, 1889, and about two o’clock, the said train, consisting of a large number of freight cars, was stopped about one mile west of the village of Corfu, which was the depot nearest to where said train was stopped; that the said Fox then went on the track to the rear of said train with two lanterns, furnished by the defendant, to signal any trains that might be approaching upon the same track. Par. 5. This plaintiff further states, upon his information and belief, that the said lamps thus carried by said Fox were not safe or sufficient for the purpose of signaling an approaching train, even when used by a competent person. Par. 6. This plaintiff further states that on the said 19th day of February, 1889, the defendant started another extra freight train from Buffalo east, on the same track, and which started about twenty minutes after said train number 48; that the plaintiff was then and there employed by the defendant to accompany said extra train as a brakeman, and he did so accompany said train until the collision hereinafter stated. Par. 7. This plaintiff further states that soon after two o’clock in the morning of said February 19th, and while it was dark, the said extra train, at full speed, ran against the rear of said train number 48, which was then stationary upon the track, as before stated. Par. 8. This plaintiff further states that the engine on said first train was not in proper condition to draw said train; that said train was not supplied with torpedoes to warn an approaching train; that the said first train remained an obstruction upon the track, to the knowledge of the defendant, and was not removed therefrom; that the defendant neglected to place upon the track of said railroad proper signals that the track was obstructed; that the defendant did not send back but one person to give signals; that the person sent back with lamps was not furnished with proper lamps, and he was not competent to use the lamps which he had; and in consequence of said negligence of the defendant the last or extra train ran into train number 48, without any fault of the plaintiff or of the persons in charge of the extra train. Par. 9. This plaintiff further states that in consequence of the said negligence of the defendant this plaintiff had his leg broken, and otherwise sustained permanent injuries, to his great damage, and was also compelled to and did pay out large sums for medical treatment and nursing. Wherefore this plaintiff demands judgment against said defendant for ten thousand dollars damages, besides the costs of this action.”
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    E. F. Bullard, for appellant.
    Harris & Rudd (Hamilton Harris, of counsel), for respondent.
   MAYHAM, P. J.

There was no evidence in this case of negligence on the part of the defendant which would justify the submission of that question to the jury. The only evidence relied upon by the plaintiff to establish the fact that the defendant failed to furnish sufficient and suitable lamps was the testimony of the plaintiff of the declaration of the defendant’s brakeman. That was clearly hearsay, and amounted to no proof of the fact, and cast no burden upon the defendant of proving the contrary, or negativing that unsworn statement. It did not overcome the legal presumption that competent and sufficient servants were employed by the defendant. Potter v. Railroad Co., 136 N. Y. 77, 32 N. E. 603. Nor does the testimony of the plaintiff that he saw no light, and heard no torpedoes explode, overcome that presumption.

The company had furnished adequate rules governing the conduct of its employés, and if the coemployés of the plaintiff failed in the observance of those rules, and the plaintiff was injured for want of such observance, it was the consequence of the negligence of the coémployés for which the defendant is not liable. There was therefore nothing to be submitted to the jury, and the learned trial judge properly dismissed the plaintiff’s complaint. Judgment affirmed, with costs. All concur.  