
    Daniel Klinger, Jr., Respondent, v. United Traction Company and Schenectady Railway Company, Appellants.
    
      Negligence — a passenger on a street ear injured by a, collision between such car and a ca/r attempting to pass by a crossover switch, due to its rea/r truck following the switch track instead of the main track — liability of the one company owning the railroad and of the other using it under a traffic agreement — respective obligation, to the person injured, of the two companies — res ipsa loquitur — excessive speed.
    
    In an action brought against the United Traction Company and the Schenectady Railway Company, to recover damages for personal injuries sustained by the plaintiff, it appeared that the United Traction Company operated a double-track street railway in the city of Albany, and' that the Schenectady Railway Company operated its cars over the traction company’s tracks under a traffic ' agreement which devolved upon the traction company the duty of keeping in repair the tracks and switches; that at the time in question the traction company was engaged in repairing a portion of its west-bound track, and that both east and west-bound cars were obliged to use the east-bound track; that one of' the traction company’s west-bound cars, upon which the plaintiff was a passenger, had crossed over to the east-bound track and proceeded to the east end of a permanent crossover leading from the east-bound to the west-bound track; that an east-bound car of the Schenectady Railway Company had just been transferred over the permanent crossover to the west-bound track and had stopped, with its east end about ten feet west of the west end of the crossover; that some person, apparently acting on behalf of the traction company, threw the point of the tongue of the switch in the crossover, so that the Schenectady company’s car could be run easterly on the west-bound track past the permanent switch, for a distance sufficient to permit the traction company’s car to cross over to that track and proceed westerly thereon; that there being a steep grade descending toward the east, the .motorman of the Schenec- ■ tady car started it by letting off the brake without applying any power; that the front trucks of the car passed over the tongue of the switch properly, but that when the fear trucks reached the tongue it had' evidently moved out of position, so that the rear truck took the crossover instead of the west-bound track, throwing the rear end of the car against the traction company's car and causing the plaintiff to receive injuries.
    
      Held, that a judgment against both defendants should be affirmed;
    That the plaintiff, being a passenger on one of the traction company’s cars, that company was bound to use the' utmost human skill and foresight with reference to maintaining, operating and keeping in repair its tracks and switches, in order to save him from- harm;
    That the tongue of the switch having failed to remain' in position, or having been misplaced because of some unexplained or unascertained cause, it was. not incumbent upon the plaintiff, as against the traction company, to show the cause of the displacement;
    That, under the doctrine of ves ipsa loquitur, the traction company was required to explain the cause of the displacement, in order to relieve itself from the presumption that its negligence caused the accident;
    That, with respect to the plaintiff, the Schenectady Railway Company was only bound to use reasonable and ordinary care with respect to the circumstances confronting it at the time;
    That it bore the same relation to the plaintiff as' if he had been driving his own horse and wagon upon the street instead of being a passenger upon one of the traction company’s cars;.
    That, in view of the heavy down grade, the weight of the Schenectady car, and the knowledge of the motorman that the switch was not fitted with appliances to hold the tongue in place, and that, when , running against the point of the tongue instead of against the heel thereof, he was' using the switch in a manner in which it was not intended to be used, reasonable and ordinary care required the motorman- to proceed very slowly and to keep his car under control;
    That, under the circumstances, negligence on the part of the motorman might be based upon the fact that he testified that his car was moving about three or four miles an hour when he discovered that the rear truck had taken the crossover.
    Houghton, J., dissented as to the liability of the Schenectady Railway Company.
    
      Separate appeals by the defendants, the United Traction Company and the Schenectady Railway Company,' from a judgment of. the Supreme Court in favor of the plaintiff for $850 damages besides costs, entered in the office of the clerk of the county of Albany on the 9th day of September, 1903, upon the report of a referee.
    The defendant traction company owns and operates a double-track surface railway in various streets in the city of Albany, including State street, Eagle street and Washington avenue. The defendant, the Schenectady Railway Company, by a traffic agreement between it and the defendant traction company, runs its cars over the tracks of the latter company on the streets named. Under the traffic agreement between the two defendants the duty was devolved upon the traction company of keeping the tracks and switches in connection therewith, over which the cars of the two companies were operated, in repair. Each of the defendants operated and managed its own cars by its own employees.
    The plaintiff while a passenger in one of the traction company’s cars was injured by a collision between that car and a car operated by the Schenectady Railway Company. On the 8th day of September, 1903, the day of the accident, the traction company was engaged in replacing the old rails of the west-bound track on the curve at State and Eagle streets with new rails and for tha.t reason at that time there was but one track in use at that place and the entire traffic during the repairs to the track at that point was necessarily conducted on the east-bound track. The traction company had a permanent crossover switch on Washington avenue north of Capitol park from the east to the west-bound track west of the place where the west-bound track had been taken up, and to facilitate the transfer of cars to the track so being used the traction company put in a temporary crossover below Eagle street, on which east-bound cars crossed from the west to the east-bound track. The switch tongue at'the permanent crossover was three or four feet long,- secured by a pin at the heel or easterly end thereof, movable in an iron plate upon which it rested, so that when the tongue was placed against the rail of the main track it formed a complete joint and a continuation of the main track. The traction company’s car, upon which the plaintiff was a passenger, was one bound westerly. It crossed by the use of the temporary crossover below Eagle street to the eastbound track and stopped near the east end of the permanent crossover north of Capitol park. The Schenectady Railway Company’s ■car came from the west on the east-bound track and had been transferred over the permanent crossover to the west-bound track and .stopped with its east end about ten feet west of the west end of that crossover. Some person, apparently acting on behalf of the traction company,' threw the point of the tongue of the switch in the west-bound track so that the car could run down easterly on that track for a distance sufficient to permit the traction company's ear to be switched over to it and proceed westerly thereon. The grade at that point was about three feet in one hundred descending towards the east. The motorman on the Schenectady car, after receiving the signal to start, started his car by letting off the brake, without applying any power. The front trucks of his car passed over the tongue properly but when the rear trucks reached it it had evidently moved out of its position from the rail far enough for the flange of the wheel to enter and so the rear truck went down on the , •crossover throwing the rear end of the Car over on the other track ;and the result was a collision between the car and the traction company’s car which was standing east of the Crossover on the eastbound track, and the plaintiff was thereby injured.
    The plaintiff has secured a judgment against both defendants and each of them appeal separately.
    
      Lewis JE. Garr and James O. Garr, for the appellant Schenectady Railway Company.
    
      Patrick G. Dug am,, for the appellant United Traction Company.
    
      Diehard 0. Bassett,- for the respondent. ■
   Chester, J.:

The plaintiff was injured while a passenger on one of the traction company’s cars. . While it is true that his injuries were received by reason of a collision between this car and one operated by the Schenectady Railway Company, yet the primary cause of the injury was the misplacement, or the failure to remain where it was placed, of the tongue of the switch maintained and operated by the traction company, and we think it is a fair inference from the testimony that ■ such misplacement was caused by the concurring negligence of both defendants. Each of the defendants on the trial engaged in an- effort to cast the blame for the’ plaintiff’s injuries upon the other!

■ The case must be considered having regard to the difference in the degree of care which the. defendants were bound to exercise in relation to the plaintiff under the law. He haying been a passenger 'on one of the traction company’s cars, that company was bound to the exercise of the utmost human skill and .foresight with reference to maintaining, ■ operating and keeping in repair its tracks and switches in order to save him from harm. (Palmer v. D. & H. C. Co., 120 N. Y. 170; Coddington v. Brooklyn Crosstown R. R. Co., 102 id. 68; Zimmer v. Third Ave. R. R. Co., No. 1, 36 App. Div. 265; Koehne v. N. Y. & Queens Co. R. Co., 32 id. 419.) And the tongue of the switch having failed to remain in position or having been misplaced, because of some- unexplained or unascertained . causej it was not incumbent upon the plaintiff, as against the traction company at-least,, to show the cause of its being misplaced, but under the doctrine of res ijpsa loquitur that company was required to explain- its cause in order to relieve itself from thé presumption of negligence in causing the accident. (Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297; Seybolt v. N. Y., L. E & W. R. R. Co., 95 id. 562; Caldwell v. New Jersey Steamboat Co., 47 id. 282; Holbrook v. Utica & Schenectady R. R. Co., 16 Barb. 113; Gilmore v. Brooklyn Heights R. R. Co., 6 App, Div. 117.)

The Schenectady Railway Company, on the other hand,, was. bound to the exercise of reasonable and ordinary care only under the circumstances which confronted it. at the time; It bore the-same relation to the plaintiff as if he had been- driving his own horse and wagon upon the street instead of being a passenger on one' of the traction company’s cars. ( Unger v. Forty-second St., etc., R. R. Co., 51 N. Y. 497; Seagriff v. Brooklyn Heights R. R. Co., 31 App. Div. 595.)

Within.these principles of law it seems to me-that there was sufficient evidence before the learned referee to justify his conclusions, that .each .of. the defendants was guilty of negligence and that the negligence of each contributed to the plaintiff’s" injuries.

The negligence charged against the Schenectady Railway Uompany in the complaint was that its caz’ vstn at an excessive rate of speed; that it was a defective caz*, arid that its employees upon the car were negligent.

There was no proof that it was a defective car, but there was proof given on behalf of the plaintiff that would justify the infei-enee of negligence on the part of the employees upon the car, growing out of the rate of speed at which the car was allowed to run at the time of the collision. The car had been switched over from the east-bound track to the west-bound track and stopped at a point about ten feet west of the westerly end of the permanent crossover. The traction company’s car was standing still on the eastbound track close to the east end of the crossover. Some one, presumably in the employ of the traction company, threw the tongue of the switch at the westerly end of the crossover and the Schenectady Company’s car was started in its attempt to run down easterly upon the west-bound track. McGraw, its motorman, saw that the switch was set for that ti’ack. He saw the traction company’s car standing at the other end of the switch seventy-five or eighty feet away; lie knew that he was running against the point-of the tongue of the switch, and not against the heel, and in a way that it was not intended to be used. He knew that it had no rubber or block in the switch to hold the tongue in place. His car was a very heavy one, about twice the weight and about twice the length of the traction company’s car. It had á double set of trucks of four wheels each, one set at either end of the car, which was from fifty to sixty feet long. It was a heavy down grade. Under such circumstances-reasonable and ordinary care would require him to proceed very slowly and to keep his car under control, so that the weight and the speed of the car would not jar the tongue from its position or misplace the switch, or if it did do that, so that his car might be stopped before injury7 had been done to a car standing so near upon the other track. Yet he swore that his car was moving about three or four miles an hour when he discovered the rear truck had taken the crossover. This was evidently true when the force of its contact with the traction company’s car is considered. The rear end of his car hit the westerly end of the traction company’s car, knocked it off. the track, burst it in and shoved it sideways from fifteen to twenty feet from the position it ticcupied. The fi’ont end of his car went a distance of forty or fifty feet east of the easterly end of the crossover before it was stopped.

While, under other circumstances, a rate of speed of three or four miles an hour could not fairly be regarded as evidence of carelessness, yet, with the situation presented here and with all these facts before the referee, we cannot say that his conclusion that the Schenectady Railway Company was negligent is unsupported by the evidence.

On the trial the Schenectady Railway Company rested its case on its exception to a denial of its motion for a nonsuit at the close of the plaintiff’s proof and announced that no evidence would be introduced on its behalf. This position was adhered to, except that its counsel asked a few questions upon cross-examination of the witnesses produced on behalf of the other defendant, the answers to which did not materially change the situation so far as the plaintiff’s case against it was concerned. It insists that any testimony beneficial. to the plaintiff’s case brought out upon the examination of the traction company’s witnesses cannot prevent it from having the full benefit of its exception to the denial of its motion for a nonsuit. It is not necessary to decide as to this contention, as the conclusion we have expressed as to the correctness of the decision of the referee as to the negligence of the Schenectady Railway Company is based entirely upon the plaintiff’s proofs without any reference to that produced by the traction company in its'defense.

We also think that the judgment against the traction company is amply sustained by the evidence under the rules of law applicable as against it. The negligence charged against it was that its tracks, switch and the appliances connected therewith were improper, dangerous, insufficient and defective. Notwithstanding the fact that the switch may have been misplaced by the jarring of the passage over it of the front trucks of the Schenectady Company’s car, yet the accident was caused because the tongue of the switch, did not stay where it was put by its own employees. It was bound under the traffic agreement to maintain and keep in repair the switch and the tracks. The only inference from the testimony is that the switch was operated by its own employees. It was bound- to the highest degree of care in this respect. It was using its tracks and switch in a way they were not intended to,be used, in order to facilitate the repairs to its tracks. In so using the switch, if the tongue would not remain in place without some mechanical means for-holding it there, it was its duty to provide such means. When the plaintiff proved that the accident happened in the way it did, the presumption was that the traction company was negligent, and it was not incumbent upon the plaintiff to show the cause for the switch being misplaced. Yet, notwithstanding that it had employees in the vicinity of the accident, it did not call a single witness who saw the accident.

We think, therefore, that the conclusion of the referee that both the defendants were negligent has sufficient support in the testimony.

The judgment as against both defendants should be affirmed, with costs.

All concurred, except Houghton, j., dissenting from affirmance of judgment against the defendant Schenectady Railway Company.

Judgment affirmed, with costs.  