
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    May 22, 1908.
    THE PEOPLE v. JACKSON.
    (125 App. Div. 873.)
    Manslaughter, Second Degree—Negligence in Setting Signals.
    The defendant, a towerman in charge of switch signals on an elevated railroad, was convicted of manslaughter, second degree, because of alleged gross negligence in setting signals whereby a train was derailed and passengers killed. Evidence examined, and Held, that the proximate cause of the accident was the negligence of the motorman, and that the evidence did not sustain the indictment. Scott, J., dissented.
    Appeal by the defendant, Cornelius J. Jackson, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 19th day of February, 1907, convicting the defendant of the crime of manslaughter in the second degree, and also from an order denying the defendant’s motions for a new trial and in arrest of judgment.
    
      Levi W. Naylor, for the appellant.
    
      Robert G. Taylor of counsel [William, Travers Jerome, District Attorney], for the respondent.
   Clarke, J.:

The defendant was a towerman on the Hinth Avenue Elevated railroad, in the city of Hew York, in charge of the switches at Fifty-third street and Hinth avenue, where the Sixth avenue trains leave the Hinth avenue tracks, and running through Fifty-third street turn into Sixth avenue to continue downtown.

The second count of the indictment, which count alone was submitted to the jury, after setting forth the general duties of the defendant as a switchman in the employ of the Interborough Rapid Transit Company, and that he was in charge of the switch at Ninth avenue and Fifty-third street, alleged: That it was the duty of said Jackson to attend to the proper exhibition and display of the signals, and duly and properly to work, exhibit and display the same for the guidance of the conduct of tlio motorman; that the line of the said railroad was equipped and provided with a certain signal located and situated near the switch near Fifty-third street, so constructed that it could be set so as to display either a red disc or a green disc; and it was the duty of Jackson, in his said employment, whenever a train so marked as to show that it was intended that the said train should continue in a southerly direction down Ninth avenue beyond Fifty-third street, and should not turn in an easterly direction along Fiftv-third street, should approach the said signal and switch from a northerly direction to cause the said signal to be set so as to display to the motorman of such train a red disc, and to cause the said signal so to remain until the said switch should be so set as to allow the said train to proceed in a southerly direction down Ninth avenue beyond the said Fifty-third street, and to refrain from setting the said signal so as to show to the motorman of such train a green disc until the switch there should be so set as to allow the passage of such train in such southerly direction down Ninth avenue and beyond Fifty-third street; and on .the 11th day of September, 1905, a certain train so marked as to show that it was intended that the same should proceed in a southerly direction beyond Fifty-third street down Ninth avenue there, and should not be turned at the said Fifty-third street from a southerly direction to an easterly direction, was approaching the said signal and switch from a northerly direction, and at the said time the said switch was then and there so set and placed that it was not possible for the said train to proceed beyond Fifty-third street along the said track in a southerly direction, and so that the said train if it proceeded would be turned and could proceed only in an easterly direction and along Fifty-third street, and it was the duty of Jackson to set the said signal so as to display to the motonnan of the said train a red disc and to leave the said signal so set, and to refrain from setting the said signal so as to show to the said motorman a green disc until the said switch should have been so set that the said train could proceed in a southerly direction beyond Fifty-third street along the said ¡Ninth avenue there.

¡Nevertheless, Jackson then and there well knowing the premises and his duty in that regard as aforesaid, and being wholly unmindful of and disregarding the same, feloniously, willfully and carelessly, with gross and culpable negligence, did then and there, the said switch being then and there so set as last aforesaid, wholly omit and neglect to cause the said signal to be so set as to display to the motorman in charge of the said train a red disc, and did then and there feloniously, willfully and carelessly, with gross and culpable negligence, cause the said signal to he so set as then and there to show to the said motorman a green disc, by reason of which said culpable negligence of him, the said Jackson, the motorman of the said train was then and there induced to believe and then and there did believe that the said switch was then and there so set as to allow the said train to proceed in a southerly direction beyond Fifty-third street along ¡Ninth avenue there, in which direction the said motorman then and there desired that the said train should then and there proceed, whereupon the said motorman acting upon such belief then and there caused the said train so under his control as aforesaid to proceed along and beyond the said signal with great speed, by reason whereof the said train then and there proceeded at such great speed upon and onto the track of the said road there leading in an easterly direction along the said Fifty-third street there, by reason whereof and of such culpable negligence of him, the said Jackson, one of the cars of which the said train was then and there composed was then and there with' great force and violence thrown from the said track and elevated railroad down to and upon the ground, by means of which one Solomon ISTeugass, a passenger in said car, was killed.

It is to be borne in mind that under this indictment the defendant is charged with a particular act of culpable negligence as a consequence of which a passenger lost his life. He is not charged generally with a failure of duty or culpable neglect. The People have laid their hand upon one specific act, namely, that on the approach of a ¡Ninth avenue train the defendant neglected to display to the motorman in charge of said train a red disc, and did cause the said signal to be so set as to show to the said motorman a green disc, by reason of which the motorman ivas then and there induced to believe, and then and there did believe that the said switch was so set as to allow the said train to proceed in a southerly direction. Whereupon the motorman, acting upon such belief, caused the said train under his control .to proceed along and beyond the said signal with great speed onto the Fifty-third street track, by reason whereof the car was caused to leave the track and fall into the street. The . conviction, therefore, if it is to be sustained, must depend Upon the question whether the display of the green signal and the failure to display the red signal was an act of culpable negligence which caused the accident.

The case is singularly free from disputes as to the facts. The defendant was an experienced switchman bearing an excellent reputation upon the road. He was familiar with the situation and conversant with the rules and regulations governing tho control of trains and the signals and switches at this point. The next station above Fifty-third street is at Fifty-ninth street. From this point all the signals at the locus in quo were visible. The ¡Ninth avenue line proceeds straight downtown. Three hundred and ninety feet north of the Fifty-third street switch is a crossover from the middle or express track to the southerly or downtown track. At the crossover is a switch bearing a target or disc which, when the track is clear, shows yellow. A yellow disc or flag is a cautionary signal and is an order to an approaching motorman to slow down and get his train under control. The signal at this point, while not operated in connection with the switch at Fifty-third street, yet acts as a cautionary signal to downtown trains approaching Fifty-third street, so that if the motorman obeys the order given by this yellow signal he gets his train under control and is approaching Fifty-third street slowly.

From thirty-five to thirty-six feet north of the switch at Fifty-third street is a signal called the home signal. This is operated from the tower house and it shows two colors, red and green. Green is the signal that the road is clear—red is the signal to stop. The signal at the switch is called the pot signal and is lower than either of the two hereinbefore referred to. This signal shows two colors, green and yellow. When the track is set straight for Ninth avenue, this pot signal shows green. When the switch is turned for the Fifty-third street curve, around which the Sixth avenue trains go, this signal shows yellow.

The operation of these signals is as follows: The first or cautionary signal always shows yellow when the crossover is not open. The line in its normal state should be set straight for Ninth avenue with the cautionary at yellow, the home signal at red, and the pot signal at green. When a train hearing the discs indicating that it is a Ninth avenue train approaches, the tower-man changes the home signal from red to green. The motorman then has, first, the yellow cautionary, then the home, green, then the pot, green. That says to him, the track is set up for Ninth avenue and you may go ahead. The track is so arranged that the wheels of the train engage a bar which locks the signals so that after the train has entered upon the rails in the immediate vicinity of this switch, none of them can be changed until the train has passed out of the section. After the Ninth avenue train has gone on its way it is the duty of the towerman to change the home signal back to red. Therefore, the normal condition, when no train is approaching, is that the track is set for Ninth avenue, the yellow cautionary, the red home, and the green pot. If with the track in this condition a train marked for Sixth avenue approaches the towerman throws the pot signal to yellow and then the home signal to green. This means that the track for the Sixth avenue trains is open into Fifty-third street, but to a Ninth avenue train green at the home signal and yellow at the pot signal is just as much an order to stop as it would be if the red signal was displayed. In other words, the Ninth avenue motorman has two stop signals, one red, and the other the combination of the green at the home and yellow at the pot signals. He can only proceed down Ninth avenue when he has the combination yellow at the cautionary, green at the home, and green at the pot.

On the morning of the accident, in the neighborhood of seven o’clock, the towerman was at his post and had been suffering for an hour or so with a bowel trouble. As a Sixth avenue train approached he was taken with cramps. He threw the switch for the Fifty-third street track thereby displaying the yellow disc and then changed his home signal from red to green. As the Sixth avenue train approached with the signals so properly displayed for it to continue on its way and after they had become locked by the wheels of the first car engaging the interlocking bar so that they could not be turned, the defendant ran some twelve feet to the closet. Hearing a train approaching he hastily ran out, still in disorder, but it was too late to do anything. The signals and switch were locked by the wheels of the approaching train. This was a Ninth avenue train. The motorman had disregarded the cautionary signal 390 feet north of the switch and was running at the speed of twenty-five miles an hour. The track remained as it had been set for the Sixth avenue train with the signals properly displayed for its then condition, namely, green at the home and yellow at the pot signal. If it had been a Sixth avenue train that was approaching the signals would have been properly displayed for such train, the track was properly set and the train would have gone around in safety if the motorman had taken the curve slowly as required by the rxiles. The signals showed the exact condition of the track, that is, set for Fifty-third street, and they gave an order to the Ninth avenue train that the track was not set for it down Ninth avenxxe, and that it was the duty of the motorman of that train upon those signals to stop precisely as if a red signal had been displayed. In xxtter disregard of those signals and of the rxxles of the company which had required hixn to slow up axxd get his train under control at tjie caxxtionary signal, as well as the rules to stop when he saw these two signals displayed, the motorman continued at a speed of twenty-five miles an hour around the curve and so, of course, cars left the track and fell to the street with a deplorable loss of life.

It is obvious, upon the facts here presented, that the gross and exxlpable negligence of the motorman in proceeding at the high rate of speed at which he was running in disregard of the rules of the company and in defiance of the orders gixren to him by the signals displayed to stop, was the proximate cause of the death of the passenger. The towerman had set his signals which told the exact condition of the track. The track was in perfect condition in accordance with those signals. There was no failxxre of machinery; there was no misplaced switch; there were no erroneous or lying signals. The story the signals told was the truth and the order that they gave to the Ninth avenue motorman was to stop, and the order to the Ninth avenue motorman to stop would have been no more imperative if, with the track set for Fifty-third street, as it was, the home signal had displayed the red disc instead of the green. But, it may be said, if the towerman had set his track back to Ninth avenue and the home signal had been displayed red, that if the Ninth avenue motorman had disregarded that signal and had run past it at the rato of twenty-five miles an hour no accident would have occurred because he would have proceeded straight down Ninth avenue. The answer is that the defendant has not been indicted for a general failure of duty or for a failure to set back the Ninth avenue track. He is indicted because when the Ninth avenue train approached, the switch was then and there so placed that it was not possible for the said train to proceed beyond Fifty-third street along the said track in a southerly direction and so that the said train, if it proceeded there would be turned and could proceed only in an easterly direction and around Fifty-third street there, and the said switch being then and there so set, the defendant did wholly omit and neglect to cause the said signal to be so set as to display to the motorman in charge of the said train a red disc and did, with gross and culpable negligence, cause the said signal to be so set as to then and there show to the said motorman a green disc, by reason of which said culpable negligence the motorman of the said train was then and there induced to believe and then and there did believe that the said switch was then and there so set as to allow the said train to proceed beyond Fifty-third street along Ninth avenue, upon which belief the motorman acted.

With the switch set for Fifty-third street, as charged in the indictment, the green disc coupled with the yellow at the pot signal did not indicate to the motorman that he could proceed down Ninth avenue, but was an absolute statement that the track was then set for Fifty-third street as it was, and that it was his duty to stop; and if the red disc had been displayed, the failure of which is charged in this indictment, it would have been no more an order to the motorman to stop than the combination of green and yellow which was there, and under the circumstances here disclosed, under this indictment, I cannot see that the display of the red disc would have prevented the accident. Nor can we assume that the motonnan would have obeyed one imperative signal when he had disobeyed another equally as imperative, and, therefore, I do not see how it follows that the failure to display the red disc, with the tracks properly set as the signals called for, can be held to have been a proximate or a concurring cause of the accident.

Section 193 of the Penal Code provides that “ Such homicide is manslaughter in the second degree when committed without a design to effect death, * * * 3. By any act, procurement or culpable negligence of any person which, according to the provisions of this chapter, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree.” Section 195 provides that “ A person who, by any act of negligence or misconduct in a business or employment in which he is engaged, or in the use or management of any machinery, animals or property of any kind, intrusted to his care, or under his control, or by any unlawful, negligent or reckless act, not specified by or coming within the foregoing provisions of this chapter, or the provisions of some other statute, occasions the death of a human being, is guilty of manslaughter in the second degree.”

I cannot reconcile myself to the proposition that a switchman, who has set his signals to indicate the precise condition of his switch, is guilty of manslaughter because a motonnan, in gross disregard of his duty, has failed to obey the order given by the signals which show the actual condition-of affairs.

An essential charge in the indictment is that by the display of the green disc at the home signal the motonnan was induced to believe and acted upon such belief, that the way was clear down Ninth avenue. Wo evidence was introduced to sustain that allegation, and the facts proved show that the green disc in combination with the yellow disc at- the pot signal was an indication directly to the contrary.

My conclusion is, therefore, that the evidence did not sustain the indictment, and that the judgment should be reversed.

Ingraham, Laughlin and Houghton, JJ., concurred; Scott, J., dissented.

Judgment reversed, new trial ordered. Settle order on notice.  