
    (88 Hun, 468.)
    SMITH v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    July 6, 1895.)
    Master and Servant—Rules for Protection of Servant.
    A railroad company is not liable for the death of a fireman caused by the collision of his engine with a disabled train standing on the track, where the rules adopted were sufficient, if observed, to prevent such accidents, but were not observed by the engineer of the colliding train.
    Appeal from circuit court, Rensselaer county.
    Action Tby Emma Smith, as administratrix, against the New York Central & Hudson River Railroad Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. Plaintiff was nonsuited, and appealed.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    L. E. Griffith (T. F. Hamilton, of counsel), for appellant.
    R. A. Parmenter, for respondent.
   MAYHAM, P. J.

This action was prosecuted by the plaintiff, as administratrix of John Smith, deceased, an employé on a passenger train of the defendant’s railroad, who was killed by a collision between the train on whichjie was employed and another train on the defendant’s road. The plaintiff’s intestate was a fireman on a locomotive engine of the defendant, attached to a passenger train required by the defendant’s time schedule to run from Dutchess Junction to Fishkill, two stations on the defendant’s railroad, at about the rate of 103 miles an hour. This time schedule was in the possession both of the engineer and fireman on that locomotive, who were eoemployés of the defendant. The defendant had established and promulgated rules for the government of its train hands, which were known to these employés and to all persons in the management of its trains, which, if observed by those employed in running the trains, would have rendered the accident improbable, if not impossible. The accident occurred by reason of the accidental stopping of a train in advance of the one on which intestate was employed, and going in the same direction. The rules of the defendant, among other things, provided that when any train was stopped on the road, or impeded, or is only able to proceed at a slow rate, the rear brakeman or trainman must go back instantly with a red signal, at least half a mile. Had this rule been observed, sufficient warning would have been given to have stopped the train on which intestate was employed, and thus averted the injury. To this rule there is an exception,—that when the train is guarded by a distance signal, or flagman displaying a red or danger signal at a sufficient distance to protect from injury, which the trainman must see and know, he may, instead of going back half a mile, rely upon such signal. The case shows that a semaphore, displaying a danger signal, was set; and that the signal man, on seeing that, took up his torpedoes, and returned; and that the intestate’s train passed the semaphore without heeding its warning and thus collided with the engine engaged in helping the disabled train. The rules also require that all trains approaching a station, junction, or point where a signal is located must do so expecting to find them at danger, and must be prepared to stop. Had this rule been observed by the engineer and intestate, the collision could not have occurred, and the serious consequences to intestate would not have followed.

It is urged by the appellant that the proof shows that other railroads have different rules from those adopted by the defendant, and that from that proof the jury might have found that the rules of the defendant were defective to such "an extent that the jury might have found it guilty of negligence; but we find no proof that the rules of the defendant were so defective that, if strictly followed by the employés, they would not have afforded adequate protection to all employés acting under them. We think the learned judge was right in holding that there was an entire failure of proof to establish any negligence of the defendant, and, if the accident was caused by negligence, it was the negligence of the intestate’s coemployés, which was a risk he took when he engaged in the service of the defendant, and for which his personal representative cannot recover in this action. We find no error in the rulings or decision of the learned trial judge for which this judgment can be reversed.

Judgment affirmed, with costs. All concur.  