
    Sarah A. Frounfelker, as Widow of John Frounfelker, Deceased, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Negligence—injury to a conductor on a freight train from a rear end collision — difference in the level of the bumpers of the caboose in which the conductor was and those of a coal car in front, under which it was forced—effect of a violation of the company's rules requiring a flagman to be sent back when the train stopped.
    
    In an action to recover damages resulting from the death of the plaintiff’s husband, it appeared that the deceased was' a conductor in charge of a freight train upon the defendant’s railroad and that, shortly after six o’clock on the morning of the accident, his train stopped a short distance west of. a station, where there was a curve at a distance of from 250 to 300 feet behind the caboose that after the train had been standing from five to twelve minutes another train' appeared around the curve the engine of which struck the caboose, lifting the rear end thereof and forcing the forward end under a coal car in front of it, the deceased, who was sitting at a desk in the caboose, being caught between the' cars and killed.
    There was evidence that the bumpers upon the caboose were fourteen inches deep and nine inches wide, while the bumpers upon the coal car were . eight inches deep and twelve inches wide and that the tops of the bumpers upon the coal car were about three and one-half inches above the tops of the. bumpers upon the caboose, and the defendant’s negligence was predicated upon this difference in the level of the bumpers.
    It also appeared that the rules of the road provided that when a train was compelled to stop between stations a flagman should immediately go back one-half mile with danger signals in order to stop any following train, and that conductors would be held strictly responsible for the enforcement of such rule. It did not appear that the deceased had made any effort to enforce compliance with this rule, and the evidence showed that at the time the colliding train appeared around the curve the flagman from the deceased’s train had only proceeded from 200 to 250 feet.
    
      Held, that the proximate cause of the collision was the failure of the deceased and the flagman to comply with the rules of the company relative to sending back warning signals in case of the stoppage of a train between stations;
    That the difference in the level of the bumpers did not justify a finding that the defendant was guilty of negligence in the absence of evidence that the accident would not have happened if the bumpers had been level.
    Hatch, J., dissented.
    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 17th day of January, 1902, upon the verdict of a jury for $17,500, and also from an order, bearing date the 13th day of January, 1902, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hamilton Odell, for the appellant.
    
      Thomas P. Wickes, for the respondent.
   Ingraham, J.:

This case was before this court on a former appeal (48 App. Div. 206). The deceased, plaintiff’s husband, was a conductor in charge of a freight train upon the defendant’s road, and as the result of a collision between the deceased’s train and one following it, he was killed on the morning of October 3, 1896. .There does not seem to be any serious dispute of fact, and the main question presented is, whether there is any evidence to justify a finding of the jury that the defendant was negligent, or that the deceased was free from contributory negligence.

The train of which the deceased was conductor consisted of coal cars, with a caboose for the use of the train hands at the rear of the train. This caboose was attached to the train in the usual manner and was furnished with what were called bumpers designed to be opposite to similar bumpers upon the freight car in front to protect the cars in case of their being forced together. The bumpers upon the caboose were fourteen inches deep and nine inches wide, while the bumpers upon the coal car were eight inches deep and twelve inches wide. The bumpers upon the caboose and the freight car were not exactly on an equal level, the top of the bumper upon the coal car being about three and a half inches above the top of the bumper upon the caboose, there being, however, at least four and a half inches of the surface of these bumpers upon the two cars opposite each other, and it is upon this inequality that the plaintiff relies to charge the defendant with negligence. The evidence is undisputed that all of the cars upon the defendant’s road were constructed in a like manner, and there is no evidence that the injury to the deceased was caused by this inequality in the level of the bumpers, or that if they had been exactly level the accident would not have happened just as it did. Nor was there any evidence that the cars in general use were furnished with bumpers other than those in use upon the defendant’s road, or that there were other appliances in common use, the adoption of which would have avoided this accident. The deceased had been in the employ of the defendant as a conductor upon freight trains of this character for many, years; was .presumably familiar with the construction of these cars, and this train was made up in the usual manner. It appears that shortly after six o’clock on the morning of October 3, 1896, the train in charge of the deceased was stopped at a little to the west of a station on the road called Stroudsburgh, because of a train being ahead of it; that from five to twelve minutes after it had stopped a. following train appeared around a curve at the. rear of the deceased’s train; that as soon as the deceased’s train was seen by the engineer of the approaching train every effort was made to stop the train and the approaching train had almost stopped when the engine struck the cáboósé' of the deceased’s train. The impact caused the caboose to run under the coal car in front, and the deceased; who was sitting at his desk in the caboose, was caught between the cars and killed. ' Neither the coal car nor the locomotive of the colliding train were injured, the only injury being to the caboose. Although the deceased’s train had stopped upon the main track from five to twelve minutes, the deceased appears to have remained in the car sitting at the desk provided for the use of the' train conductor, and it does not appear that he did anything to avoid a collision. The engineer of the colliding train was called as a witness for the plaintiff and testified that at the time of the accident his train was running about eight miles an hour; that there was a curve from 250 to 300 feet west of the rear car of the deceased’s train; that as his locomotive came around this curve he saw the caboose of the deceased’s train; that as soon as he was in a position to see this caboose, he saw it and tried to stop the train; that at the time his engine hit the caboose the train had almost stopped so that the headlight of the locomotive was not broken; that he did not see a brakeman from the deceased’s train-; that he had commenced to slow up for the station before he saw the train. Lyman, the fireman on this train, was also called as a witness for the plaintiff and testified that he was on the engine at the time; that he saw the brakeman just as they were rounding the curve; that as soon as he saw the brakeman they stopped the train the best they could; that the brakeman was between 200 and 300 feet from the deceased’s train when the fireman first saw him; that the caboose upon the deceased’s train was lifted up by the pilot of the engine in consequence of the collision. This lifting up of the rear of the caboose would naturally have the- effect of lowering the other end so as to force it under the freight car in front, and no bumpers or other appliances, so far as the evidence discloses, could prevent that result. There was, also, evidence that from time to time the defendant made up time tables showing the time of the various trains upon the road; that these tables were issued to all of the conductors of the road, and had printed upon them certain rules and regulations imposing upon the conductors and other employees certain duties to avoid collisions of this character. While there is no witness who testifies that he personally handed -to this conductor a time table containing these rules and regulations, the fact that they were constantly issued by the company to the conductors to guide them in the performance of their duties and certain officials of the defendant were especially charged with the duty of delivering these time tables to the conductors whose. duty it was to receive them and to run their trains by them, is presumptive evidence that the deceased had received the time tables and was familiar with the rules and regulations of the company printed thereon. (48 App. Div. 206.) The material rules are as follows:

“ Rule 2. All employees of the company are expected and required in all cases to exercise the greatest care and watchfulness to prevent injury or damage to person or property. Vigilance and watchfulness insures safety. In all. cases of doubt adopt the safe course.
Rule 3. When a train is required to stop between stations from any cause, or is compelled to proceed at a slow rate of speed* or is required to stand at a station longer than the usual time for any purpose, the. flagman must immediately go back one-half a mile with danger signals * * * to stop any train or engine which may be following.”

, Rule 4 provides for. the placing of torpedoes on the rail and for signaling an approaching train. Rule 6 provides: “Conductors and engineers will be held strictly, responsible for the. prompt, enforcement of this rule, and are required to carry out these, instructions whenever and wherever their trains are stopped or delayed on the- main track, day or night. They have no. right to presume that other trains are not closely following or approaching.” - The deceased’s train, which was an extra train, had stopped on the main track between stations. The deceased was required to see that a. flagman immediately started to go back half a mile and adopt the precautions provided for by the rules to stop approaching trains. It is undisputed that this flagman did not obey this. rule. The evidence of the plaintiff’s witnesses shows that at the time the colliding train appeared around the curve from 250 to 400 yards west of the rear of the. deceased’s train, and which was from five to twelve minutes after the train had stopped, the flagman was first seen from . 200 to 250 feet behind the deceased’s train. There is no evidence that the deceased - left the caboose at all after his train had come to. a stop. The flagman had by the undisputed testimony over five minutes from the time the train stopped,, and during that time had only gone back from .200 to 250 feet. By the rule -the deceased was required to carry out these instructions whenever and wherever his trains were stopped or delayed on the main track,- day or night. The conductor was thus distinctly charged with the duty to see that this rule was enforced, and that the flagman at once started hack to prevent an approaching train from colliding with his train. This rule was not obeyed, arid as it was the duty of the deceased to enforce this rule, he certainly was guilty of neglect in the performance of his duty, a neglect which was the direct cause of the collision. Had this flagman got around the curve so that he could be seen by the approaching train a short distance before he was seen, the train would have been stopped in time to avoid the collision. Had a person not an employee of the defendant been injured by this collision, this act of the conductor, upon the plaintiff’s evidence, would have been negligent, for which the company would have been -responsible, and as he alone suffered from the result of the collision, I can see no escape from the conclusion that it was his negligence, negligence in failing to obey this explicit rule of his employer by wliicli he was charged with seeing that a brakeman at once performed his duty, that was the approximate cause of the injury. The burden is on the plaintiff to prove that the deceased was free from negligence that contributed to the injury, and it seems to me that not only has the plaintiff failed to support that burden, but that the facts are capable of but one construction, and that is that the proximate cause of the collision was the negligence of the deceased and the flagman properly to comply with the rules of the company formulated for the purpose of preventing a collision and endangering the lives of the employees of the company and passengers upon its trains. The employees of railroad companies managing these modern railroads- with trains of great weight, running at a great speed, should certainly be held to a strict accountability for a failure to comply with the rules and regulations which are necessary to the safe conduct of the business in which they are employed, and where the railroad companies have formulated proper rules and regulations to protect their employees and passengers from accidents, arid the railroad companies as to third parties are held "liable for a failure of their employees to strictly enforce these rules, and an employee is injured because of his failure to comply with the rules he can have no claim for compensátion from the company whose rules he has willfully disobeyed or neglected to enforce.. Nor do I think that in this case the evidence justified a finding that the defendant was guilty of negligence. The negligence of the defendant is predicated upon the fact that these bumpers were not exactly on a level, so that there was three and a half inches of the bumpers of the coal car above the bumpers of the caboose ; but the plaintiff’s evidence which is uncontradicted was that four and a half inches of the buffer of these two cars met. Here was a light car, unloaded, placed between the approaching engine and the heavily loaded coal cars. Some part of the car must necessarily give way. The elevation of the rear of the caboose upon the pilot of the engine would cause the front of the caboose to be forced under the coal car, and there is no evidence from which an inference can be drawn that, if these bumpers had met so that the whole of the eight inches instead of four and a half inches were in contact, the same result would not have followed.

The right of the plaintiff to recover is based upon the case of Ellis v. N. Y., L. E. & W. R. R. Co. (95 N. V. 546), but the fact in that case was that although the cars were furnished with bumpers ten inches thick, they were at such different elevations that instead of meeting to receive.the concussion, they exposed to the blow only a surface of three-quarters of an inch and so overlapped each other that they were ineffectual for any useful or designed purpose. There was in effect no bumpers or anything to take their place on the car upon which the plaintiff’s intestate was employed, and upon the evidence in that case it was said by the Court of Appeals that the absence of the bumper was the proximate cause of the injury. There is no such evidence in this case.

I do not think, therefore, that the finding that plaintiff’s intestate was free from negligence or that the defendant was negligent' was sustained by the evidence. The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the result.

Van Brunt, P. J., and O’Brien, J., concurred; Hatch, J., dissented.

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