
    Rebecca Sutherland, as Administratrix, etc., Respondent, v. The Troy and Boston Railroad Company, Appellant.
    (Argued January 19, 1891;
    decided February 24, 1891.)
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 11, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict.
    This action was brought to recover damages for the killing-of plaintiff’s intestate, Mark Sutherland, through the alleged negligence of -defendant’s employes.
    It appeared that said intestate had been a locomotive-engineer in defendant’s employ for three years; that on August. 1, 1883, he left Troy in charge of a locomotive drawing freight train Mo. 1, thirty minutes late. He had in his possession the time-table then in effect, on the back of which the rules, according to which the trains were run, were printed, with which h& was familiar. These rules provided that the speed of freight trains must not exceed fifteen miles per hour exclusive of all stops, and that they must in all cases keep ten minutes out of the way of passenger trains. These rules governed belated trains as well as those on time. Sutherland’s train left Hoosick Falls two hours late, eight minutes to ten it passed Petersburgh Junction, about five miles distant, which required a speed of' thirty-five miles an hour. Two and one-half miles east of said station his train collided with Mo. 6, a train going west, which was about on its regular schedule time and plaintiff’s intestate was killed. It appeared that if Sutherland had been governed by the schedule time in going from Hoosick Falls to Petersburgh Junction, he would have been compelled to stop there to allow Mo. 33, an eastward bound passenger train, to pass, and his train would then have become subject to the ten minute rule. It also appeared that defendant employed one Johnson as telegraph operator at Petersburgh' Junction, who was a little over seventeen years old and had had more than a year’s experience as a telegraph operator, having been employed by defendant at this point for over three months prior to the accident, and having discharged his duties intelligently and to defendant’s entire satisfaction. He had been employed on the recommendation of the manager of the 'Western Union Telegraph Company and the train dispatchei ■of the Delaware and Hudson Canal Company, and was perfectly conversant with defendant’s rules and a first-class operator. It also appeared that young men were generally better ■operators than older men. It also appeared that defendant’s •trains were moved in accordance with telegrams from the train dispatcher’s office at Troy. The train dispatcher telegraphed Johnson to flag and hold train No. 1 for orders, and he immediately, in accordance with defendant’s rules, put out a red flag. At the same time train No. 2, moving west, received orders to meet train No. 1 at Petersburgh Junction. It was held until Johnson received from the train dispatcher a telegram for No. 2 to meet No. 1 at Hoosick Falls. Johnson wrote out the dispatch in triplicate and according to the usual custom gave a copy to each of the conductor and engineer of train No. 2 and took in the red flag. Johnson had never before had any order to hold train No. 1 for No. 6. Train No. 1 reached Peters-burgh Junction at 8:30, having recived no notice of the order in relation to train No. 2, and there being no red flag out, passed without stopping and in a few minutes collided with train No. 6, plaintiff’s intestate and five others being killed.
    Upon a former trial plaintiff was nonsuited and the judgment entered thereon was reversed by the General Term. (46 Hun, 372.)
    Plaintiff claimed that Johnson was not a competent operator, and that, therefore, defendant 'was chargeable with.negligence in employing him. The trial court submitted that question to the jury.
   The following are extracts from the opinion:

“ The contributory negligence of Sutherland is the difficult point in the case. If this question was not in the case, we think the judgment would have to be reversed for error in submitting to the jury the question of the competency of Johnson. The only suggestion of his incompetency made by the plaintiff is founded upon the fact that he was but a little over seventeen years ,of age. It was shown that he had had more than a year’s experience as telegraph operator; that for more than three months prior to the accident, he had been the operator of the defendant at this point, and had discharged his duties intelligently, to the entire satisfaction of the company; that the company employed him on the recommendation of the manager of the Western Union Telegraph Company at Rutland, and of the train dispatcher of the Delaware and Hudson Canal Company, and that he was perfectly conversant with the rMes, and was a first-class operator,’ and it also appeared that young men were'generally better operators than older men. The plaintiff did not undertake to controvert the proof of the defendant on the subject.

“We think, under the circumstances, the jury could not be permitted to infer that Johnson was incompetent in fact from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake which Johnson did.

“ But aside from this error, it seems to us that the plaintiff did not meet the obligation resting upon her of presenting a case from which the jury could fairly find that her intestate was free from any negligence which contributed to Ms death. Of course the jury had a right to consider that the intestate was not here to explain the circumstances, and to make the most favorable inferences which the evidence permitted, and such inferences also from obscure and doubtful circumstances relating to his conduct, which the jury might not be inclined to draw if fuller explanation was jiossible. But admitting this, it remains as an incontrovertible fact, founded upon written evidence in connection with admitted circumstances, that the deceased was brought into the peril which caused his death in part by his disregard of the written rules of the company, with which he was acquainted and wlfich, if they had been observed by him, would have resulted in his stop23ing his train at Retersburgli Junction, and so have avoided the collision.”

After a review of the evidence, the court continues as follows:

“ It seems to us impossible to say that the violation of the rule by Sutherland did not contribute to the accident. The rules are made as well to promote the business of the road as for the safety of employes. A train dispatcher at a distant point must, to a considerable extent, rely upon the rules being observed by trainmen, and his actions are naturally influenced by this assumption, and so it was in the present case, although the jury might say that his full duty was not discharged. It cannot be supposed that Sutherland was ignorant of the importance of observing the rules. He unfortunately rushed on to his destruction because he saw no red flag at the junction, not bearing in mind that in running at such a rate of speed he was violating a rule and bringing'himself within the peril which resulted in his death. It seems to us that, upon the evidence, the co-operating negligence of “the deceased was an inference of law, and that the judgment should, therefore, be reversed and a new trial granted.”

John H. Peck for appellant.

Gha/rles P. Patterson for respondent.

Per Curiam

opinion for reversal and new trial.

All concur.

Judgment reversed.  