
    Sarah A. Frounfelker, as Widow of John Frounfelker, Deceased, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Negligence — rear end collision—presumption as to the conductor's knowledge of the rules—charge as to his duty to obey them and as to his being a careful man of long service — duty of the conductor to instruct the flagman.
    
    The rules of a railroad company provided that whenever a train .should be required to stop between stations, the flagman should immediately go back a distance of half a mile and display a danger signal, placing three torpedoes at intervals on the track, and that conductors and engineers were required to cany out such instructions and would he held strictly responsible for their enforcement. In an action brought against the railroad company, to recover damages resulting from the death of a conductor in consequence of a" train having run into the rear end of his train shortly after it had been stopped .between stations, the court refused to charge that it was the conductor’s duty “to observe and obey the rules prescribed by the defendant relating to the movement and management of his train. It was his duty, when his train was stopped ..on the morning of October 3d, 1896, before reaching East Stroudsburgli station, t-6 see that his flagman went hack, as required by the defendant’s rules, with flag and torpedoes, to warn any train that might be approaching. If he failed or • neglected to observe this duty, and Ms failure or neglect contributed to the collision which resulted in his death, the plaintiff cannot recover.”
    
      Held, that such refusal was,erroneous, as, although there was no conclusive proof that the deceased conductor knew of the rules, it appeared that they were printed upon the backs of the timetables, and that whenever a new timetable was issued copies were distributed to all the conductors, and that this course was followed with reference to the timetable in force at the date of the accident— from which a presumption arose that the conductor had knowledge of . the rules, and that this rule was binding upon the deceased, and determined the measure of care which he was required to exercise under the circumstances;
    That it was also error for the court to charge that, in determining whether the deceased conductor was negligent or failed to discharge his duty, the jury might consider the testimony of the conductor of the colliding train, that the deceased was a careful man, and also the long period of the latter's employment by the company;
    That the fact that the flagman who, so far as appeared, had no knowledge of •* the rules, went back a distance of 300 feet, but did not place any torpedoes on the track, although he had ample time to comply with the rules, did not relieve the deceased conductor from the imputation of contributory negligence if he neglected to send the flagman upon his mission with proper instructions as to what he should do, and with proper materials with which to do it.
    Appeal by the defendant, the Delaware, Lackawanna and Western 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 New York on the 11th day of May, 1899, upon the verdict of a jury for $9,000, and also from an order, entered in said clerk’s office on the 8th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hamilton Odell for the appellant.
    
      Thomas P. Wickes, for the respondent.
   Barrett, J.:

The action was brought to recover damages for the death of John Frounfelker, alleged to have been caused by the defendant’s negligence. Frounfelker was the conductor of one of the defendant’s coal trains, and was killed on October 3, 1896, while riding in the caboose, by a rear end collision between his train and another coal train in charge of one Wallace. Shortly prior to the collision, the deceased’s train had been stopped by signal, somewhat to the west of the village of East Stroudsburgh. Rules 3 and é of the defendant company, in force at the time of the accident, provided that, whenever a train should be required to stop between stations, the flagman should immediately go back a distance of half a mile and display the danger signal, placing three torpedoes at intervals, on the track. Rule 6 provides that conductors arid engineers are required to carry out these instructions and will be held strictly responsible for their enforcement. A period estimated at from five to twelve minutes elapsed between the time of the stoppage of the deceased’s train and the collision, yet it appears that the flagman went back a distance of not more than 300 feet, and, so far as appears, placed no torpedoes upon the track. There is no direct evidence that the deceased took any step whatever looking to a fulfillment by the flagriian of the duties prescribed.

We think it was error to refuse to charge the defendant’s third request, which was as follows: “ It was Frounfelker’s duty t© observe and obey the rules prescribed by the defendant relating to the movement and management of his train. It \tfas his duty, when his train was stopped on the morning of October 3d, 1896, before reaching East Stroudsburgh station, to see that his flagman went • back, as required by the defendant’s rules, with flag and torpedoes, to warn any train that might be approaching. If he failed or neglected to observe this duty, and his failure or neglect contributed to the collision which resulted in' his death, the plaintiff cannot recover.”

The plaintiff contends that the rules were not binding upon the deceased, at least as matter of law, since there was no conclusive proof that he knew of them. It appeared that the rules were printed on the back of the timetables; that whenever a new timetable was'issued, copies were distributed to all the conductors; and that this course was followed with reference to the timetable in force on October 3, 1896. No witness was called who had,a spe1 cifie recollection of delivering one of these timetables to the deceased, but there was sufficient evidence prima facie that this was doné. Where a carrier of passengers and freight like the defendant formulates rules for the guidance of its employees, and establishes an adequate and operative system for the promulgation of those rules, the presumption is, in the absence of any evidence to the contrary, that the employees were thus made acquainted with what it was essential for them to know. Presumably the system operates in the particular case. It would generally be impossible for such a corporation to give direct and specific evidence concerning every detail of its business. The presumption is fortified in the present case by the fact that the rules were printed on the timetable, and that without a timetable it was impossible for the deceased safely to run his train at all.

The rules being thus presumptively known to the deceased, it seems clear that he was bound to obey them, and that if his failure to do so caused or contributed to the accident, there can be no recovery. The cases of Eaton v. N. Y. C. & H. R. R. R. Co. (14 App. Div. 24) and Moeller v. Delaware, L. & W. R, R. Co. (13 id. 467) seem to be direct authority for this proposition. In addition, it has often been held that the failure to obey a rule of a railroad corporation is negligence, which, if committed, by a coemployee of the injured party, furnishes no basis for a recovery. (Smith v. N. Y. C. & H. R. R. R. Co., 88 Hun, 468; Bryant v. N. Y. C. & H. R. R. R. Co., 81 id. 164; Drake v. N. Y. C. & H. R. R. R. Co., 80 id. 490.) If this negligence is attributable to the injured party himself, it seems plain that it must be contributory negligence, which will prevent a recovery regardless of the independent negligence of the defendant.

It is also urged, in substance, that the duty of the deceased under rule 6 was merely to give the proper instructions to the flagman, and see that he started out to signal following trains; that, as the flagman in fact did so start, it was immaterial whether the deceased was active, or not; and thus that the negligence of the deceased did not cause or contribute to the accident. This argument overlooks a vital omission in the proof. The duty of the deceased, at the least, was to send out the flagman upon his mission with proper instructions as to what to do and proper materials with which to do it. There is no proof that he fulfilled this duty. So far as appears,' the flagman had no knowledge of rules 3 and 4, but was merely acting upon his own judgment. Certainly he signally failed to comply with these rules. It cannot be presumed that, had the proper instructions been given to him, he would have deliberately disobeyed them and thus caused the accident. And he had ample time to give a warning to Wallace’s train, which would most certainly have been effectual. At all events, it was perfectly competent for the jury to find, both that the deceased disobeyed rule 6, and that this disobedience caused or contributed to the accident and the request to charge is so phrased that the plaintiff had no valid ground of objection to it.

■ But it is"said that the learned judge merely refused to charge the request “ except as I have charged it.” All that he had previously charged, however (except in the general statement that the plaintiff must show that the deceased was “ free from contributory negligence ”), was that, “ According to the rulesiof the company, and even without regard to rules, the obvious peril of the situation would require the exercise of proportionate diligence and care on the part • of the conductor to properly warn following trains/’ etc. This was not at all an equivalent for the third request. As already stated, the rules formulated by the defendant for the protection of its employees constituted the measure of care necessary to be exercised, and it was erroneous to substitute some other and less definite standard.

The . error which we have been considering is emphasized by the action of the court in charging the plaintiff’s eighth request, namely, that “in determining whether Frounfelker was negligent himself, or whether he failed in any way to discharge any duty imposed upon him by any regulation of the defendant railroad company, the jury may fake into consideration the testimony of Wallace - * * * that Frounfelker was a careful man, and may also take into consideration Frounfelker’s long period of continuous employment by the company.” These ■ latter considerations, while they might possibly have a bearing upon the question whether a party ^ acted prudently under some special and peculiar circumstances (as to which, however, we express no Opinion) had no relevancy to the question of whether or not the deceased complied with’ rule 6.

For these errors, without considering any of the other questions presented, the judgment and order must be reversed and a new trial ordered, with costs to the- appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  