
    Louise A. Wood, as Administratrix of the Estate of Charles E. Wood, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence-^-railroad fireman killed through the concurrent negligence of Me engineer and of an incompetent switchman.
    
    In an action to recover the damages resulting from the death of an employee of the defendant, a railroad company, occasioned by a collision which was the concurrent result of the negligent act of the engineer of the train, on which the deceased was employed as a fireman, in neglecting to obey the rules of the defendant by failing to stop his train, and of a switchman of the defendant, alleged to have been an incompetent person, and known to the defendant’s officers to be such, in not disconnecting a switch, the defendant is liable in case the accident would not have occurred but for the negligence of the switchman, assuming that it was negligence on the part of the defendant to continue such ' switchman in its employ.
    Appeal hy the defendant, Thé New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court' in favor of the plaintiff, entered in the office of the clerk of the county of. Onondaga on .the 22d day of October, 1897, upon the verdict of a .jury for $3,000, and also from an order entered in said clerk’s office on the 21st day of October, 1897, denying the defendant’s motion for a new trial made upon the minutes. ■
    
      Frank Hiscock, for the appellant.
    
      Lawrence T. Jones, for the respondent.
   Follett, J. :

This action was begun March 17, 1896, to’recover damages for the alleged negligent killing of plaintiff’s intestate, an employee of the defendant. For five years before February 12, 1896, the plaintiff’s intestate had been employed by the defendant as a fireman on freight trains running between East Syracuse and Buffalo. At 8 p. m. February 11, 1896, a stock train left Buffalo for East Syracuse, the crew of which consisted of George W. Pfeiffer, conductor, Thomas Welch, engineer, Charles E. Wood, fireman,-Wilson and -- Cronin, brakemen. From Buffalo to Rochester the train ran on track No. 1, the east bound passenger track, also used for fast freight trains, and from Rochester ran east on track No. 4, .which is for east-bound freight trains.

About five miles east of Fairport on February 12, 1896, at 12:30 a. m., the stock train on which Charles E. Wood, plaintiff’s intestate, was the fireman, running east on track No. 3, collided with a freight train running west on the same track, instantly killing the intestate: It was a cold night, snow was falling and the wind was blowing from the west. Main street in the village of Fairport extends north and south, crossing the tracks of the defendant’s road substantially at right angles. Tracks Nos. 3 and 4 are freight tracks, No. 3 being used by west-bound trains and No. 4 by east-bound . trains; A short distance west of Main street tracks Nos. 3 and 4 diverge, and a few feet east of the point of divergence they are about twenty feet distant from each other and extend at about this distance from each other for nearly one mile, when they, converge and thence extend east at the usual distance, from each other. Between these freight tracks there is a side track about one mile in length and connected at each end by switches so that trains can pass on to and from this side track from tracks Nos. 3 and 4. At the point of divergence west of the village of. Fairport is a switch by means of which trains running east can be switched from the main tracks on to this side track and trains running west on the side track on to either main track. At the point of convergence east of the village of Fairport there is a like switch so that trains can pass from either main track on to the side track, or from the side track on to either main track. Near the switch just west of Main street is a semaphore. On the occasion in question and for sometime previous thereto the semaphore and switch were under the control of Bert B. Stoddard, whose duty it was to set the switches, attend to the signals and note and report the passage of trains. A white light at this semaphore and switch denoted that the switch was not connected with track No. 4, and that freight trains running east on that track would continue on that track. A red light displayed at the semaphore and switch denoted that the switch was connected with track No. 4, and that trains running- east on that track would take the side track and proceed on the side track to the east end thereof and then enter upon track No. 4 and continue thereon eastward. The train on which the intestate was employed is known as the stock train. Some little time before the stock train reached Fairport, a freight train, known as the garbage train, running east, stopped on track No. 4 at Fairport to leave some cars." The switch west of the village was immediately changed so that other trains coming from the west would enter upon the side track, pass by the garbage train and enter on track No. 4 at the east end of the side track and proceed eastward. When the switch was so set, red lights were displayed at the semaphore and at the switch. About half an hour before the stock train reached Fairport, a freight train, known as B. N. 8, running . east on track No.. 4, reached the switch at the west of the village of Fairport. Red lights were then burning on the semaphore and on the switch. This train passed from track No. .4 on to the side track, and proceeded to the east end thereof, where it was switched on to track No. 4, and proceeded east on that track. Shortly after this the garbage train, having finished its shifting, proceeded east on track No. 4. It was then the duty of Stoddard to see that the switch at the west end' of the village was disconnected from track No. 4, and to show white lights at the semaphore and at the switch. This Stoddard neglected to do, and when the stock train reached "the switch it passed on to the side track, ran to the east end thereof, and entered on to track No. 3 instead of track No. 4, and proceeded eastward on that track until the collision occurred. Precisely how. the switch at the east end of the side track became connected with track No. 3, does not clearly appear.

The plaintiff seeks to recover on the theory that Stoddard, in charge of the semaphore and switch, neglected to disconnect the switch from track No. 4, and neglected to display red lights at the semaphore and switch, and that Stoddard was an incompetent employee, which was known to the defendant’s officers, and that they were negligent iii continuing him in charge of the semaphore and switch. The plaintiff insists, and one witness testified, that when the stock train on which the plaintiff’s intestate was fireman, reached the switch, no lights were displayed on the semaphore ’ or on the switch. Defendant’s rules provide that in case a red light was displayed at the semaphore and switch, or in case no light was shown at either, the trains approaching from the west were to pro-' ceed with caution, and wait for a signal before passing-on to the side track: These directions the engineer of the stock train neglected to obey. If a red light were burning, he was negligent in'not stopping and waiting for a signal. If no light were burning, he was equally negligent in not stopping and waiting for the signal to proceed. The engineer was also negligent in entering upon track No. 3 at the east end of the side track instead of upon track No. 4, and running on track No. 3 four or five miles, without observing that he was upon the wrong track. His negligence was the negligence of a coemployee of the plaintiff’s intestate, and for which the defendant is not liable in this action. Bert B. Stoddard, the employee in charge of the semaphore and switch, was also negligent in not disconnecting the switch connecting the side track with track No. 4. The negligent acts of the engineer of the train and of Stoddard were the concurrent, proximate and efficient causes of the accident. Had Stoddard performed his duty the accident could not have happened, for if the switch had not been connected with track No. 4 the stock train could not have passed therefrom on to the side track, and from the side track on to track No. 3. In case the accident would not have occurred but for the negligence of Stoddard, the defendant is liable in case it was negligent in leaving him in charge of the semaphore and switch. (Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557.) This presents the question whether Stoddard was an unfit person to be intrusted with the charge of the semaphore and switch.

Without reciting the evidence in respect to the competency of Stoddard, it is sufficient to say that it presented a question of fact as to his competency, and also whether the defendant’s officers knew or ought to have known of his frequent neglect of the duties which he was employed to discharge. These two questions were found in favor of the plaintiff, upon evidence sufficient to take the questions to the jury, and under instructions from the court which were clear and impartial, and I think there is no occasion for interfering with the verdict in this case.

The judgment and order should be affirmed, With costs.

All concurred.

Judgment and order affirmed, with costs.  