
    John Y. Monaghan v. The New York Central and Hudson River Railroad Company.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 25, 1887.)
    
    1. Master and servant—What constitutes the servant, the representative OE THE MASTER.
    This action was brought to recover tor injuries suffered, it was claimed, through the negligence of the defendant. One of the acts of negligence alleged was that of the defendant’s operator at a station on the road over which the plaintiff, an employee of the defendant ran his engine Certain rules had been laid as to the operation of that portion of the road, and the operator was charged with the duty of controlling and directing the movement of trains at that point. Held, that the relation of representative in the'sense requisite to render the act of the servant that of the principal, did not necessarily depend on the rank -which he occupied, but upon the character of the act which he was called upon to perform.
    
      2. Same—Co-servants—Who are.
    
      Held, that an act by the telegraph operator within the system of rules provided with regard to the movement of trains upon the portion of the road at which he was engaged, was not such as made him the alter ego of the defendant. That he performed such act as the co-servant of the plaintiff an engineer in the employ of the defendant.
    3. Same — Obligation op master to furnish suitable machinery, etc.
    
      Held, that it was the duty of the defendant to use reasonable care in supplying the employees with suitable machinery, tools and appliances so that they might not be unnecessarily exposed to danger from their use in the service.
    4 Same—Servant’s knowledge of the dangerous condition of machinery EXEMPTS MASTER.
    
      Held, that for an injury received by an employee which was attributable to defects in the machinery, appliances, etc., furnished, of which the employee had knowledge before using it, the defendant could not be held liable
    Motion by the plaintiff for a new trial on exceptions taken at Monroe circuit and ordered heard at general term in the first instance.
    The action is to recover damages for personal injuries of the plaintiff alleged to have been occasioned by the negligence of the defendant. ■ At the close of the evidence on the part of the plaintiff a nonsuit was directed. He moves for a new trial.
    
      William 8. Oliver, for pl’ff; A. H. Harris, for def’t.
   Bradley, J.

The plaintiff, a locomotive engineer in the service of the defendant, made a trip on the defendant’s road from Eochester to Lyons and return on the morning of May 21st, 1882, with an engine and train of cars. After his return the engine was detached from the train and run to a Y in the western part of the city of Eochester to turn it around, and having done so, he was proceeding east with the engine when it was run into by another engine and the plaintiff received severe personal injury.

The defendant was then engaged in elevating its tracks through the city, in consequence of which its then provision was such, that all trains going east through the city west of York street were run upon a single track This situation brought there on to the single track the trains from Buffalo, Niagara Falls and Charlotte. The next street west of York street and 300 feet therefrom is Childs street, west from which were six tracks of the defendant’s road numbered from the south, one to six. The Buffalo track was No. 1, and the Niagara Falls track came in from the northerly side, and the single track to which the convergence was made at or near York street to proceed therefrom was No. 2.

When the plaintiff was returning from the Y at the Niagara Falls track there was a freight train headed east standing on track No. 8, and from 100 to 200 feet west of Childs street, which the evidence tends to prove cut off his. view from an engine and caboose on the Buffalo track, No. 1, also headed east.

The defendant had a telegraph station at Childs street, from which signals were to be given to regulate the movement of trains going east; and its rule required that east bound trains from the Falls line and Charlotte should stóp at Childs street before entering upon the four tracks until the operators gave them signal to go ahead, and that no east-bound freight trains on main line pass Childs street-until told by the operator that all was clear. As the plaintiff with his engine came in on the Falls track, and some distance west of Childs street, he by the use of the steam whistle of his engine sought to call attention of the operator to his situation. And a person from the station gave a. signal to proceed, which was taken by the three engineers, whose engines were situated as before- mentioned as applicable to them respectively, but the engineer of the freight train was advised that it was not intended for him, and his-train remained, while the engine on track No. 1, and that in charge of the plaintiff proceeded forward. They passed the freight train about the same time, the plaintiffs a little in advance of the other.

Immediately after passing the freight train the plaintiff' commenced to diagonally cross the main tracks to reach No. 2, and the engine which came in on track No. 1, was proceeding to the same point, the junction of which was-near York street. It seems that the signal from the operator to go forward was intended only for the engine and caboose on the Buffalo track, and when the plaintiff’s engine came on to Childs street, signal was given to him to stop, which he undertook to do by shutting off steam and reversal of the motive power of his engine. And seeing that did not stop the engine, and that it was too far ahead to stop in time to avoid collision, he concluded to restore the power to give it forward motion. And in his attempt to change the reverse lever for that purpose, the throttle or handle blew out, and he could not operate the lever, and the-pressure of the steam remained reversed and tended to stay its forward motion, although the pressure was so low that the engine continued ahead. And the approaching engine struck the tender of "the plaintiff’s engine, producing the collision and injury complained of. The plaintiff charges-that the injury was occasioned by the defective condition of the engine. Also that the plaintiff was placed in the position which caused the collision by the fault and negligence of the defendant’s telegraph operator at Childs street station, and that his negligence was that of the defendant. The relation of representative in the sense requisite to render the performance of an act of the servant that of the principal does not necessarily depend upon his rank in the service, but upon the character of the act he is called upon to perform. Crispin v. Babbitt, 81 N. Y., 516. In view of the situation at the locality in question the defendant had organized a system with the view to the operation with reasonable dispatch and safety of this portion of its road. It had made rules for that purpose, of which the plaintiff was advised, and had employed men to conduct that system, direct its execution, and to aid in the observance of the rules so provided. There is no question about the sufficiency of these rules and their reasonable application to the situation. The telegraph operator was charged with important duties at that point, as upon him was imposed the duty of controlling and directing the movement of trains there This was within the system which the rules provided for at that particular locality, and did not make him the alter ego of the defendant. Slater v. Jewett, 85 N. Y, 61

The service required of him was within and subordinate to a department of the business of the company in the performance of which he necessarily had to exercise some discretion and judgment in giving preference by means of signals in the movement of trains on to the single track, with view to the safety and protection of persons and property, and for the orderly operation of the road, but that did not make his judgment that of the company as between it and its employees.

It was only a grade in relation of co-employee, and it is sufficient that he was competent for the place, which is not questioned. Brick v. R. N. Y. & P. R. R. Co., 98 N. Y., 211; Hofnagle v. N. Y. C. & H. R. R. R. Co., 55 id., 608; McCosker v. L. I. R. R. Co., 84 id., 77; Loughlin v. The State, 6 N. Y. State Rep., 826. He was a co-employee of the plaintiff. It was the duty of the defendant to use reasonable care in supplying its employees with suitable machinery, tools and appliances so that they might not unnecessarily be exposed to danger from their use in the service.

This it is contended on the part of the plaintiff the defendant failed to do, and that the injury of the plaintiff was the consequence of such negligence and caused wholly by it. The difficulty was in the engine and its apparatus. The alleged defective conditions were that the flues leaked, that the valves in the cylinder or steam chest leaked, that the throttle leaked and that the brake was out of repair and useless. There is evidence tending to prove that the condition of the engine and its machinery was impaired in the respects mentioned. The flues had leaked quite badly for some time, the consequence of which was, that it was difficult to keep up the fire so as to maintain the requisite quantity of steam to give the engine suitable operative power. This had been so for some time, and the attention of the train dispatcher had been called to it, but the engine had nevertheless been used upon a coal train between Rochester and Lyons with reasonable success, although such leakage had required increased labor to keep up fire to generate steam sufficiently to supply suitable motive power to run the train.

The only danger to be apprehended from such cause in the use of an engine is the liability of the reduction of steam pressure to such an extent as to render it difficult by means of the lever operating the valves to control the motion of the engine. The evidence tends to prove that this was one difficulty at and preceding the time of the accident. The engine was returning with only forty-five pounds of steam, and had not the power to stop on reversal of its force from a forward to a backward motion by the use of the lever. But although this day was the first time the plaintiff had run the engine he was advised of this leakage of the flues before he left Rochester in the morning, and observed it on his trip to Lyons. And on his return with a train of loaded coal cars the train was stopped on approaching an up grade, when the steam had got quite low and with the application of a blower was raised from sixty or seventy pounds to 125 or 130, a fair standard for the operation of an engine in drawing a loaded train, and the train was then without difficulty taken up the grade. It is evident that without continued care to keep up the > fire so as to overcome the leakage of water from the flues into the fire box, the leakage was liable to reduce the heat and diminish the steam and motive power of the engine. And to this may be attributed the reduction to forty-five pounds of steam at the time the engine was returning from the Y. to its place of destination. That quantity was sufficient for such purpose, although inadequate to the speedy control of its movement. This defect in the engine related to its operative power, and it was not dangerous in its use to those employed to operate it, but the supply and maintenance of the requisite motive power for its operation, and to overcome emergencies that might arise, required more than usual care and labor of the fireman. This was the apparent situation presented by this defective condition of the flues, which could as well be appreciated by an engineer running it as by any other person engaged in the business of the company.

The plaintiff was a locomotive engineer of some years’ experience. This difficulty was known to him when he took charge of the engine in the morning, and its extent and effect were observed by him on the trip and before his return with it to Eochester.

And so far as this particular defect contributed to the accident and injury it was within the hazards assumed by him. And the same may be said in relation to the leakage of the steam chest and throttle. Burke v. Witherbe, 98 N. Y., 562; Marsh v. Chickering, 101 id., 396; Bajus v. S. B. and N. Y. R. R. Co., 103 id., 313; 3 N. Y. State Rep., 96. If it had not appeared by the evidence that the plaintiff knew of the useless condition of the brake on the engine before it was detached from the train and he undertook to take it to the Y after the return from Lyons, we should be inclined to think there was a question for the jury to say whether the use of it if in order may not have been effectually made to prevent the accident and injury to the plaintiff. But it appears that the plaintiff also knew the condition of the brake. The witness Sullivan says that the plaintiff went to the brake that morning, tried to turn it, and asked what was the matter with it and was informed that it was useless. He therefore knew that after it was detached from the train there was no means to be applied to retard the movement of the engine or to stop it other than the levers under his control, and in view of his profession and experience it cannot be said that he did not appreciate the situation or condition and the inconvenience that might arise from them.

The liabilibity of this engine to be subjected to loss of motive power so as not to enable the engineer to effectually use his levers to retard the motion of it as occasion might require, gave a greater necessity for a brake than otherwise might be supposed to exist for it. But the plaintiff having proceeded to run the engine with full knowledge and appreciation of the situation, the defendant is not chargeable to him for the consequences resulting from it. Powers v. N. Y., L. E. and W. R. R. Co., 98 N. Y., 274; Marsh v. Chickering, supra.

Eeference is made by counsel to Hawley v. N. C. R’y Co. (82 N. Y., 370) as asserting a contrary rule, but then it did not appear that the plaintiff knew how badly the road upon which he ran an engine and was injured was out of repair, and it was held that under the circumstances he was at liberty to rely upon the judgment of the officers under whose direction he ran that the road was in a condition of safety. We.do not see how that reason can be applied to the case at bar in support of the action.

The conclusion seems to follow that the motion for a new trial should be denied and judgment directed on the nonsuit.

Smith, P. J., and Haight, J., concur.  