
    Caroline Hebert, Adm’rx, App’lt, v. The Delaware & Hudson Canal Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    Negligence—Absence of bules to govern a railroad yard.
    The yard of a railroad was about a mile long and had in it six parallel tracks. An employe was killed by the collision of a 'switch engine, upon which he was, with a wagon. A road ran across the tracks. This road was used to cart railroad supplies. It was alleged that cars standing on adjoining tracks prevented the engineer of the switch engine from seeing the wagon in time to prevent the collision. That this should have been avoided and rules as to it promulgated. The absence of rules governing the making up of trains in said yard was charged as negligence. The plaintiff gave no evidence of rules in other yards, nor of any method in common use in such matters. Held, that in the absence of expert opinion or proof of accepted methods, it would be improper and unsafe to allow a jury to speculate as to what were the proper methods to be adopted in a given case. That to allow the court or jury to formulate such rules by a verdict and then to say that because such rules were not in use the company was liable, would be to take the management of the corporation out of its hands.
    This action is prosecuted by the plaintiff as administratrix of the estate of her deceased husband to recover damages for the death of her husband alleged to have been caused by the negligence of the defendant in the management of its railroad. On the trial the plaintiff was nonsuited and from judgment entered upon the non-suit the plaintiff appeals.
    
      Lansing & Cantwell, for app’lt; Edwin Young, for resp’t.
   Mayham, J.

On the 14th of May, 1889, between three and four o’clock in the afternoon, the plaintiff’s intestate was killed while in the employ of the defendant, at its railroad yard in the village of Green Island, by the collision of one of the defendant’s locomotive engines, on which he was riding, with a loaded wagon. At the time of the accident and for ten years previous thereto the deceased had been the foreman of one of the gangs of men in this yard, charged with the duty of making up trains, and was familiar with all of the tracks in the same, and with the methods of conducting the work of the railroad at that place. Through this yard, which is nearly a mile in length, the main track of the defendant’s railroad runs in a northerly and southerly direction. On the east side of this main track are three side switch tracks, and -on the west of the main track, between it and the repair shops, are two side tracks, making in all six tracks nearly parallel, running through or partly through this yard. At nearly right angles with those tracks is a planked wagon way from the road way Tunning easterly and westerly across these railroad tracks to the repair shops.

This planked wagon-way is fifteen feet wide, and over it is 'carted by wagons and teams material from the road to the repair shops, for the use of the defendant in the repair shops. The side tracks on either side of the wagon-way are used for storing cars, while waiting in the yard, and trains so stored, or in waiting, are separated or broken at this wagon-way and this side track by the switch-men or gangs of men employed in the yard for switching cars and making up trains. It was part of the business of the deceased, as foreman of a gang of switch-men, to locate these stored -cars, and to see that the wagon-way was left open, and with this duty and the manner in which it was performed by himself and the other gangs of men, who were his co-employees and fellow servants, he was thoroughly familiar. The distance between these railroad tracks is from six to six and one-half feet The engines used by the defendant’s gang of yard men for switching have no pilots or tenders. There were four steps on the engine on which the deceased was riding, one on either side, at the front and rear end, attached to a platform about twelve inches wide and about two and one-half feet long at either end of the engine.

The couplers were accustomed to ride on the front or rear platform, wherever they got on; when they had to couple in front on the front platform and when in the rear on the rear platform. The cab on the engine was used for men to stand in and for coal. There are two platforms at each end of the engine of the size above described, to each of which a step is attached, and between them and either end of the engine are protecting timbers called dead-woods. The steps or platforms are to stand on to couple cam. At the time of the accident deceased was riding on the front end of the engine, upon one of the front platforms, or steps. The-engine was on the main track going north.

There were box cars standing on the track next westerly of the main track, filling that side track for about eight hundred feet south of and extending up to near the planked portion of the wagon-way. As the engine was proceeding north at a rate of speed of about four to six miles an hour it collided with the loaded wagon going westerly over the planked wagon-way and the plaintiff’s intestate was instantly killed. It does not appear to be claimed by the appellant that the defendant was guilty of contributory negligence in the construction of its locomotive engine machinery or track for which it can be held liable in this action, and the case shows that the engine used in doing the switching and making up the trains in the yard is of the character usually in use by the railroads for this kind of work; nor does it appear that any claim is made by the plaintiff, nor does the evidence disclose, that the defendant employed incompetent persons for the-performance of this work.

But it is insisted that the defendant was negligent in not making; and promulgating rules governing the manner of the performance of the work in this yard, and particularly in not making and promulgating a rule fixing the distance from this planked wagon way within which cars standing on these side tracks must not be left, and that that question was one of fact for the jury. It is not quite clear from the decisions where the power is lodged of determining in what case rules should be promulgated, and, when rules are made and promulgated, whether or not they are sufficient.

It would seem hazardous, in the case of the management of a great railroad corporation, to intrust that power either to the court or jury. The management of the intricate and complex systems of railroading is a business requiring great skill and knowledge of that subject, acquired only by long experience and careful observation of persons engaged in that business. To leave it to a court or jury to speculate as to what methods should be adopted in a given case for the protection of life or property, without the evidence of skilled and experienced witnesses upon which to act. to say whether in a given case a railroad company had adopted-proper and prudent and safe rules and regulations for the safety of the public, or of their employees, would be practically to take the control out of the hands and power of the company, and intrust it to the inexperience and caprice of a court or jury.

All will agree that these corporations should make such regulations for the management of their trains as will best promote the safety of the people. But it is manifest that the best and safest methods of management can only be ascertained by courts and juries through the medium of testimony and evidence of expert ■and experienced witnesses. In this case there was no testimony offered by the plaintiff showing what rules were necessary and proper to be adopted by the company for the management and control of the foremen of these gangs of switchmen and their men. All the evidence upon that subject is that no rules had been adopted and promulgated by the company oh this point. Without evidence upon that matter, we do not see how the jury -could reach any correct conclusion as jurors in an action. It is true the jurors might without evidence have speculated upon ■their own judgment, or perhaps their own knowledge of railroading, and reached a verdict

But this is not the method by which conclusions should be reached or verdicts rendered by juries. In Abel v. The President, etc., of D. & H. Co., 103 N. Y., 581; 4 St. Rep., 269, evidence was given of a system of rules in force by railroads for the protection of repairers while working under cars on the track, and the court in that case held that it should have been submitted to the jury whether the rules adopted by the defendant were as efficient as those adopted by other roads on the same subject. That in principle is not unlike the rule that has obtained upon the question of the safety of machinery, where it is held that where an employee is injured by defective machinery, it may be shown ■that safe or better machinery is in use, and the jury may determine whether or not it was negligence in the employer not to have adopted it.

But the case of Abel, supra, and kindred cases do not go to the length of holding that where there is no evidence of a better method, the jury may, upon their judgment or knowledge, assume that there is, and hold the defendant liable on that assumption. In the case at bar there being no evidence of any rules adopted either by the defendant or any other company under similar circumstances, the jury would have been called upon to make rules for the defendant and then hold that the defendant was liable for not having adopted and acted upon them in this case. In Donnegan v. Erhardt, 119 N. Y., 468; 29 St. Rep., 589, the injury occurred to the plaintiff through the defendant’s failure to perform a clear statutory duty in not keeping its road fenced, by reason of which a horse strayed upon the track, with, which the train collided, and an employee was injured, and the court held that the statutory obligation to maintain fences is for the protection of the employees and passengers as well as for the owners of animals straying upon the track.

We do not see that this case comes within the principle decided in the one last referred to. There is no evidence in this case that the cars left upon the side tracks were placed in such close proximity to the wagon road as to shut off or obstruct the line of vision of the deceased while on the engine, by any order of the yard master, or any one having control superior to the deceased.

The evidence shows that they had been left in similar position by the deceased as foreman of a gang of brakemen, and also by other foremen of similar gangs, and that that custom had prevailed for the entire ten years that the deceased had held that position. If, therefore, it was negligence to leave them in that position, that negligence was either the act of the deceased himself, or of his fellow servants, and in either event no liability would attach to the defendant.

In the one case it would be the contributory negligence of the deceased himself. In the other, that of a fellow servant. In either case, the rule that the defendant would not be liable is too well settled -to require the citation of authorities.

We are, therefore, led to the conclusion that the nonsuit in this-case was right.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.  