
    Dennis Keane, Respondent, v. Sea Beach Railway Company, Appellant.
    Second Department,
    March 6, 1914.
    Master and servant —negligence —injury to motorman from collision with work train — defective brakes — evidence — vice-principal.
    In an action at common law by a motorman to recover for personal injuries sustained from a collision with a work train of the defendant, two specific claims of negligence were submitted to the jury: First, as to the alleged defective brakes of the car on which the plaintiff was injured; and second, as to the negligence of the defendant in the management of the train.
    Evidence examined, and held, insufficient to sustain a finding that the brakes were defective.
    
      
      Qucere, as to whether an employee of the defendant who signaled the engineer of the train to back the same towards plaintiff’s car wasañceprincipal, within the meaning of section 64 of the Railroad Law.
    Appeal by the defendant, Sea Beach Bailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of January, 1913, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 18th day of February, 1913, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Don R. Almy [Arthur J. Levine with him on the brief], for the respondent.
   Jenks, P. J.:

This is a common-law action for negligence brought by servant against master. The servant was injured when a car of which he was the motorman came to collision with a train of the defendant’s work cars. A moment before collision the car had been driven by Walden, a novice then under instruction by the plaintiff. But when collision seemed imminent, the plaintiff thrust Walden aside and took control. The learned court submitted “two specific claims” of negligence to the jury. The first was as to the alleged defective brakes of the car, and the second as to the negligence of the defendant in management of the train. As the verdict for the plaintiff was general, we cannot determine the ground of liability found by the jury. I think that the judgment cannot be affirmed because a casting of liability upon the “ first specific claim ” of negligence would be against the weight of the evidence.

The accident occurred about 3:45 p. M. of September 1, 1911. The plaintiff testifies that the brakes were defective, so that both a longer time and a greater distance were required to stop the car. He does not specify any particular defect. He testifies that on the day of the accident he told the defendant’s starter, Leckie, of this defect. But that testimony is without corroboration save that Walden testifies that he heard some conversation, which he conld not recall save that the starter asked the plaintiff to make up lost time, and the plaintiff answered that he could not do so with that car, but Walden could not remember what reason was given by the plaintiff for his inability. For the defendant, Leckie, the starter, testifies that there was a conversation relating exclusively to the fact that the plaintiff was behind time, that plaintiff attributed the fault to the heavy travel, and that no mention was made of any defect. The plaintiff testifies on his direct examination that in this same conversation complaint had been made as to his delay. Thus plaintiff, his witness Walden and Leckie all agree that a subject of the conversation was the delay, but the plaintiff alone says that during that conversation he complained of the defective brakes, for Leckie denies this feature and Walden cannot recall it. The defendant’s mileage computer, who made his report from the cards of the conductor, testified that run No. 2 had the car on the morning of September 1, 1911, also on the afternoon, and that no one else had it on that day. The defendant’s dispatcher, testifying from his records, shows that the plaintiff had run No. 2 on September 1, 1911, from 6:38 to 7:40, and from 12: 50 to 4:10 morning and afternoon. The said mileage computer testified that this motorman made nine trips in the morning and six trips in the afternoon, and was “pulled in” by a wrecking crew. These two witnesses were not cross-examined, nor was their testimony attacked. Moreover, the plaintiff testifies that the brakes which he had on the car in the morning worked properly, but whether it was this car or not he could not state, although he afterwards says that he changed cars on account of a defective spring in the trolley pole. It was also testified that examination after the accident revealed that the brakes were in good condition except that incident to the collision the brake rod was broken. The plaintiff in describing the accident says that he was 75 feet away when the colliding train started to back; that he was running at the rate of 10 or 12 miles an hour; that he pushed the novice aside from working the car, seized the handles and did all he could to stop the car, but before he could get into position to do anything his car had gone 40 feet at least, and when he hit the train he was almost stopped. Thus, even with these brakes, he almost stopped this car traveling at the rate of 10 or 12 miles an hour in a distance of less than 40 feet.

I shall not discuss the evidence as to the “ second specific claim ” of negligence, save one feature. It is clear that the train was backed down after its motorman or engineer received a signal from the defendant’s employee Rooney. The plaintiff contends that Rooney was a vice-principal within the purview of section (42a) 64 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap.. 481), and the defendant insists that Rooney was a fellow-servant. The contention arises upon the indefinite proof as to the status of Rooney, and as to what capacity he was acting in at the time of his signal. Rooney was on the train, left it after it had been stopped, and went ahead to view the way. He testifies that he was a switch-man and went to protect the switches, and again that he was the acting conductor, the flagman, the brakeman and the switchman, but that there was another switchman and two flagmen on the train. As the engineer or motorman was backing his train he could not see ¡for himself whether he should continue his way. The question, then, is whether the engineer or motorman, when he acted upon the signal from Rooney, was obedient to a superior or merely relied, on account of his inability to see for himself, upon the aid of an inferior ? For the direction and control expressed in the statute refers to emanation from superior authority. (Hallock v. New York, O. & W. R. Co., 197 N. Y. 450.)

The judgment and order must be reversed and a new trial must be granted, costs to abide the event.

Burr, Thomas, Rich and Stapleton, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event. 
      
      
        Sic. See Laws of 1906, chap. 657, adding to Railroad Law (Gen. Laws, chap. 39; Laws of 1890, chap. 665), § 42a, being the former statute.— [Rep.
     