
    John Carr, as Administrator, etc., of John D. Carr, Deceased, App’lt, v. The North River Construction Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1888.)
    
    1. Negligence—Railroad—Construction op cars.
    On the trial of an action for damages for the death of intestate alleged to have been caused by the defendant’s negligence, it appeared that the defendant was engaged in constructing the West Shore railroad, and on the morning of September 19, 1883, the plaintiff, who was employed to distribute drinking water to the workmen, was being conveyed, together with other workmen and tools on a construction train to the gravel pits about eleven miles east of Syracuse. The train consisted of thirteen platform cars, and left Syracuse at 6:30 in the morning, pushed by an engine, as was the usual practice. For some time before the accident a hand car had preceded this train out of Syracuse. The hand car stopped at De Witt, where the persons employed on it were engaged in constructing a switch. It was the duty of the persons using the hand car to remove it from the main track before the arrival of the construction train, but they did not, and the construction train collided with the hand car, derailing the train and killing the plaintiff’s intestate, who was riding to his work as aforesaid. The plaintiff claimed that it was negligent on the part of defendant not to furnish the cars with “check chains.” The evidence did not disclose that the absence of “check-chains” caused or contributed to the accident. Held, that the plaintiff’s intestate must have known that “check-chains” were not employed. That their absence under the circumstances did not entitle the plaintiff to recover. That the accident was caused by the negligence of a fellow-workman.
    ’3. Same—Not negligent to back-a gravel train.
    It was necessary to back the gravel train one way as there was no turn table at the pit, and it was the custom to back it when empty and draw it when loaded. Held, that it was not negligent to back instead of draw the construction train under the circumstances. That the intestate knew from experience of the manner in which the train was moved, and accepted the hazard.
    :3. Same—Evidence—Rules op otber railroads—When not competent. The plaintiff offered to prove that a certain completed railroad had the
    
      following rule: “ Conductors will not under any circumstances push cars ahead of their engine, except while switching at stations, or in case of gravel trains, when it is absolutely necessary to push cars, and then the utmost caution must be used, and trainmen must ride on the head car ready to signal engineers at any moment,” and a rule which provided that section foremen “ must be careful about running hand cars near the time of any train, .and must never take up a rail within twenty minutes of the time of any passenger train.” Held, that no error was committed in rejecting these rules. That different rules were required upon a completed road which was being operated than upon one being constructed. Habdis, J., dissenting,' holding that the case should have been submitted to-the jury.
    Appeal from a judgment in favor of the defendant, entered in Onondaga county clerk’s office, upon a nonsuit granted by the trial court, upon the trial of the case at the Onondaga county circuit beforé a jury.
    On the morning of September 19, 1883, the plaintiff’s intestate was being conveyed upon a train with a number of fellow-workmen to a place known as the Kirkville pit, on the line of the West Shore road, then in process of construction. The train, used as a gravel train, consisted of thirteen platform cars, a locomotive engine and tender, and left Syracuse about 6.30 o’clock in the morning. The train started from Catharine street in that city, was pushed and not drawn, the engine being in the rear. Two stops were made to put off and take on tools, etc., the last stop being at William’s Pit, which was about a mile from the place of the accident. On leaving this place, the track curved, and. then ran in a straight line to beyond De Witt’s Station, where the accident occurred. The distance from the place where the track becomes straight, after rounding the curve to De Witt’s, is about a mile. On leaving William’s Pit, the engineer blew what is known as a station whistle, and proceeded under a headway of from fifteen to twenty miles an hour. On rounding the curve a group of men were observed by the brakeman at the head end of the train, standing on the brack, and, as the train approached them, it was discovered that a hand-car was upon the track. When within two or three hundred feet of the car, a signal was given the engineer, who at once whistled the signal for brakes, and reversed his engine. The train struck the hand car, the first cars leaving the track, and the plaintiff’s intestate, who was upon the second car, came to his death immediately from injuries received in the collision.
    The other facts will be found in the opinions.
    
      Stone, Gannon & Petit, for app’lt; Alexander & Green,. for resp’t.
   Follett, J.

Appeal from a judgment, entered upon a nonsuit; and heard upon a casé containing all of the evidence.

In September, 1883, the West Shore railroad was being constructed by the defendant, a New Jersey corporation. John Carr, the plaintiff’s son and intestate, aged thirteen years, was employed by defendant to distribute drinking water to the workmen. For some months prior to the accident, a construction train had left the city of Syracuse every day at about 6.30 A. m., for the purpose of going to the gravel pits near Kirkville, and about eleven miles east of the city, and distributing gravel along the line of the road, between Kirkville and the city. Many of defendant’s workmen were accustomed to ride on this train to the places where they were to work during the day. For some time before the accident, a hand-car had preceded this train out of Syracuse. As before stated, the road was uncompleted, and like all roads, did not and could not provide a turntable at gravel pits, and, as is customary with all roads, backed the train when unloaded and drew it when loaded. As this train was engaged in drawing gravel from Kirkville west and towards Syracuse, it, according to custom, was backed when it was moving from Syracuse east towards Kirkville. September 19, 1883, this train was being backed east from Syracuse to Kirkville, in the usual way, and was preceded by the hand-car, as it had been for a long time. The hand-car stopped at De Witt, where the persons employed on it were engaged in constructing a switch. It was the duty of the persons using the hand-car to remove it from the main track before the arrival of the construction train, but they did not, and the construction train collided with the hand-car, derailing the train and killing plaintiff’s intestate, who was riding to his work with defendant’s other employes.

The plaintiff alleges that defendant was negligent:

First. In backing, instead of drawing the work train.

Second. In not furnishing its cars with check-chains.

Third. In not establishing proper rules for conducting its business.

It is apparent, we think, that the first ground is untenable, for it would be unreasonable to have required defendant to maintain a turn-table at each gravel pit, and also at each place where the train was unloaded, so the train had to be backed one way, and it was safer to back it when unloaded and draw it when loaded, than to reverse the process. The plaintiff, his intestate and all of defendant’s employes knew, from daily experience, how the train was moved, and they accepted of the hazard.

The evidence does not disclose that the absence of check-chains caused or contributed to the accident, besides the plaintiff, his intestate and defendant’s employes must have known that check-chains were not in use upon these cars.

The plaintiff has not pointed out what rule should have been established which was not, that would probably have prevented the accident. The plaintiff’s evidence shows that rules were established, but what they were, whether sufficient or insufficient, does not appear. “ The conductor gets rules right along; I have seen the conductor have orders; they are always printed-type written, all the orders I got; I never saw any printed rules or regulations posted up on the cars, and never saw any in the hands of any of the other brakemen.”

The plaintiff offered to prove that the Rome, Watertown and Ogdensburg Railroad Company had the following rules: “98. Conductors will not, under any circumstances, push cars ahead of their engine, except while switching at stations, or in case of gravel trains, when it is absolutely necessary to push cars, and then the utmost caution must be used, and trainmen must ride on the head-car ready to signal engineers at any moment.” Section foremen: “ 220. They must be careful about running hand-cars near the time of any train, and must never take up a rail within twenty minutes of the time of any passenger train.”

The Rome, Watertown and Ogdensburg railroad was a completed road, and operated as such. Rule 98 permits gravel trains to be pushed, and provides that, in such a case, a trainman must ride on the head-car. That was exactly what was done on this occasion, as the plaintiff proved. Whether this was in pursuance of a standing rule of the defendant was not proved or disproved. The only part of rule 220 applicable to this case is, “they must be careful about running hand-cars near the time of any train.” The remainder of the rule is not important, for the defendant was not engaged in operating a completed road and in replacing rails in its track. Whether there was any rule upon this subject does not appear. It is apparent that upon a completed road definite and permanent rules may be established for the government of employees, which can be printed and furnished for their instruction; but when a road is in process of construction, rules which would be proper for a completed road, or for part of a road in process of construction, might be quite unfit for another part of the road. Ho error was committed in rejecting these rules.

That the accident was caused by the negligence of a fellow-workman of the plaintiff’s intestate is quite apparent. Haver testified: “ The train was run on the day in question as it had been run for months prior to that time; the same as we always did.” Cary testified: “I believe at that time we whistled one long toot for brakes; from the time of that toot, when we whistled at that thirteen hundred and odd feet from the place of this accident, the men at the handcar had ample time to have lifted the car off the track; I know the heft of hand-cars; two men can carry it off the track, one at each end; four men can do it easily; the front end of the train was in full view of the place of the accident, when within thirteen telegraph poles, when the whistle was given; the men at the hand-car could easily have seen the train; it was the engine that was thirteen telegraph poles from where the hand-car was when first discovered, and not the front end of the train; the train was thirteen cars long; the cars' are about thirty-three feet long.” Dillon testified: “I think that was ample and sufficient

time for the men to have removed this hand-car from the track if they had taken it right up, four of them, if they did not get excited, scared; there is no trouble whatever about four men handling a hand-car; two men could lift it bodily; four men, of course, could do it quicker and more easily.”

Upon the whole case we think it clearly appears that the accident was occasioned by the negligence of the decedent’s fellow-workmen and that the plaintiff was rightly nonsuited.

Martin, J., concurs.

Hardin, P. J.

(dissenting)—In Abel v. Delaware and Hudson C. Co. (103 N. Y., 581; 4 N. Y. S. R. 269), it was said by the court that “ the law imposes upon a railroad company the duty to its employees of diligence and care, not only to furnish proper and reasonably safe appliances and machinery, and skillful and careful co-employees, but also to make and promulgate rules, which, if faithfully observed, will give reasonable protection to the employees.”

From the evidence in the case before us, we are led to infer that the defendant had adopted no rules in respect to the operation of a hand-car upon the track in advance of the train in question, but, on the contrary, had, for a considerable length of time, permitted the hand-car, on divers days, to leave the city of Syracuse on the track to be occupied by the_ train in question. “The train was used as a gravel train, drawing gravel in from Kirkville in the process of the construction of the road.” “On this train there were five or six gangs of laboring men and trainmen.” “A hand-car used to go down the road mornings; they were always down there ahead of us; they were always down there; we saw their car down there; I did not see the handcar or its men start that morning; they always started before us; was down at the engine house, and we started in Catharine street, the engine house is about three-quarters of a mile, I guess, from Catherine street, east.”

It is apparent that it was the custom of the train in question to move from the station at Syracuse towards Enrkville, a distance of eleven miles, every morning about half-past six. If the defendant had had in force a rule forbidding the presence of a hand-car upon the track within reasonable length of time, it is probable the accident in question would not have occurred. If the time excluding the presence of a hand-car had been that named in the rule 220 of the Rome, Watertown road, it is probable that the accident in question would not have occurred. Although that rule does not say that a hand-car shall not be in advance of a train within a specified time, it does declare that persons operating a hand-car “ must be careful about running handcars near the time of any train. ’ It is not unreasonable to infer that the adoption of such a rule, and enforcement of it, would have excluded from the track, which was being traversed by the gravel train, the hand-car which caused the accident to the intestate. The rule 220 just alluded to, prohibits taking “'up a rail within twenty minutes of the time of any passenger train. ” If that length of time had been carried into a rule forbidding the presence of a hand-car upon the track where the intestate received his injuries, the collision would have been avoided. Whether or not such a rule should have been adopted for the protection of the employees of the defendant, by the defendant, the jury were not permitted to inquire.

We think, upon the evidence before the court, the trial judge was not warranted in holding, as a matter of law,

‘ ‘ that the rules of the defendant were proper and sufficient for the protection of its employees, nor in holding that it should not have taken greater precaution by rules or otherwise for their safety.” Fose v. The Lancashire and Yorkshire Railway Co., 2 H. & N., 728; L. S. and M. S. R. R. Co. v. Lavalley, 30 Ohio St., 221; Pittsburgh, Ft. Wayne and Chicago R. R. Co. v. Powers, 74 111., 344, Cooper v. Central Railroad of Iowa, 44 Iowa, 134; Slater v. Jewett, 85 N. Y., 61; Sheehan v. N. Y. C. and H. R. R. R. Co., 91 id., 332; Dana v. N. Y. C. and H. R. R. R. Co., 92 id., 639.

We are also of the opinion that the facts relating to the operation of the train in conjunction with the use of the hand-car, and the absence of any rule or regulation adopted by the defendant to control its movements, should have been submitted to the jury and that it a question of fact whether the defendant had been guilty of negligence in that regard. Abel v. D. and H. C Co., 103 N. Y., 586, 4 N. Y. S. R. 269).

We do not see any negligence in the defendant in moving the gravel cars by an engine that was pushing'them, which gives the plaintiff a right of action, nor are we of the opinion that the absence of check-chains was the probable cause of the accident in question. The absence of the check-chains was visible to the employee, and when he entered the employ of the defendant he assumed the risk and perils incident to the use of the machinery and property of the defendant, as it was without the provisions of check-chains.

In Ladd v. New Bedford Railroad Company (119 Mass., 412), it seems to have been held that any risks arising from the want of check-chains, was an incident to the plaintiff’s employment, and knowingly assumed by him, and for which he therefore could maintain no action against the company. It is not like the case in which the cars were temporarily defective in which the master may be liable. It may be said the intestate “ assumed the usual risks and perils of employment, and such as were incident to the use of this machine (train and cars) in its then condition so far as such risks were apparent.” Peckham, J., in Hickey v. Taaffe (105 N. Y., 35; 6 N. Y. S. R., 426).

We think there is no force in the suggestion made at the trial that a different rule appertains to a completed road, and one in the process of construction so far as the duty of master to his servant is concerned. Proper care and thought, and proper rules should be adopted for the protection of the employees, whether the enterprise in which they are engaged is in embryo, or whether it is established and completed. Newell v. Ryan, 40 Hun, 286.

We are of the opinion that the learned trial judge committed an error in holding the case from the jury.

Judgment is reversed, and a new trial ordered, with costs to abide the event.  