
    BAULEC against THE NEW YORK & HARLEM RAILROAD COMPANY
    
      Supreme Court, Third Department;
    
    
      General Term, May, 1872.
    Evidence.—Negligence.—Liability oe Master for Negligent Servant.
    In an action against a railroad company for damages caused by an accident on defendant’s road, arising from a misplaced switch, where the person injured was a servant of the company’s, and the ground of recovery was, that the regular switchman was known to the company to be an incompetent person,—Held, that it was error to reject evidence to show that it was probable that on the occasion of the accident, the’ switch had been changed by some person other than the regular switchman, and in his absence.
    There is no rule of law requiring intelligent men, of good habits, who are engineers, brakemen or switchmen on railroads, to be discharged for the first error or act of negligence which they commit, or making railroad companies liable for their second error or negligent act to all other servants of such companies, who may sustain damages by reason of such second error or negligent act.
    Where, in an action for damage sustained by a servant of a railroad company, by the negligence of a fellow-servant in misplacing a switch, it appeared that a misplacing of a switch by the same switchman had caused an accident on a former occasion,— Held, that the company should have been allowed to prove, that on the occasion of the former accident, they had caused an investigation to be made by one of their road masters, who reported that the switchman was free from negligence.
    Appeal from a judgment.
    Mary Baulec, as administratrix of Thomas Hammond, deceased, sued the New York & Harlem Railroad Company in the supreme court, for negligence, in causing the death of her intestate.
    
      At the time of his death, the deceased was in the defendants’ employ, and the accident which caused his death was due to the negligence of another servant of the company in misplacing a switch. This servant (McGerty), it was claimed by the plaintiff, was known to defendants as a negligent person, whose carelessness had caused a former accident. The facts are stated in the opinion.
    Plaintiff had a verdict for three thousand dollars, and defendants’ motion on the judge’s minutes for a new trial was denied.
    From the judgment entered on the verdict, and from the order refusing a new trial, defendant- appealed to the court at general term.
    
      Aldace F. Walker, for defendants, appellants.
    
      Esek Cowen, for plaintiff, respondent.
   By the Court.—Balcom, J.

The verdict in this action was recovered by the plaintiff on the ground that Hammond lost his life by the negligence of a switch tender, whom the defendants retained in their employment after they knew he was careless and incompetent for such service. Was the evidence sufficient to sustain this proposition? Or did the judge who presided on the trial, make any erroneous ruling to the prejudice of defendants ? The locomotive on which Hammond was fireman, was running towards New York city, on the defendant’s railroad, and was thrown from the track of that road, at about half past eight o’clock in the evening, in Westchester county, where the New York & New Haven Railroad unites with that track going towards New York city. The locomotive was tipped over, and Hammond was killed. The switch, at the junction of the two railroads, was set right for trains running on the New York & New Haven road ; but the signal there, to show the approaching engineers the situation of the switch, indicated that the switch was set so that trains on the defendants’ road could pass the junction. And the engineer, being deceived by the signal, did not stop his train, and his locomotive was thrown off the track by the switch being wrongly set, and Hammond was killed. The evidence was sufficient to justify the inference that the switch was wrongly placed by Patrick McGferty, who had charge of it; but the judge rejected the defendants’ offer to show that it was probable that the switch had been changed by somebody else in the absence of McGferty. To that ruling the defendants’ counsel excepted.

I am of the opinion the learned judge erred in rejecting that offer. It is clear that the action cannot be sustained unless Hammond was killed by reason of the carelessness of McGferty. The case was tried on that theory; and by the plaintiff’s endeavoring to prove, and proving to the satisfaction of the judge and jury, that the defendants were guilty of negligence and wrong by keeping McGferty in their employ, as switch tender at that switch, after an accident there that occurred previous to the killing of Hammond. It was, therefore, material for the defendants to prove that McGferty was free from the alleged negligence, that caused Hammond’s death. He might not have been careless if the switch was changed by some other person after he had set it right for trains on the defendant’s road.

The ground for charging the defendants with wrong by keeping or having McGferty in their service as a switchman when Hammond was killód, consisted in the fact that six or seven months before that time, while McGferty had charge of the switch where Hammond lost his life, a locomotive that was drawing a freight train from Hew Haven towards Hew York city, ran off the track there one night, in consequence of McGrerty misplacing this switch. The switch and signal there had been rightly placed by McGrerty, before that train had come in sight of him. When he saw it approaching, he thought it was on the defendant’s track, and therefore he changed the switch to that track ; when he discovered that such train was coming on the New York & New Haven track, it was too late for him to change the switch back to that track, and the locomotive hitched to that train, ran off the track, at the switch, a distance of about the length of one of the iron rails there. That train was going slowly, and very little damage was done by the locomotive, that was drawing it running off the track. There was evidence that trains on the New Haven & New York road usually stopped before passing that switch, and that McGrerty supposed the last mentioned train was on the defendant’s track, because it did not stop, and, therefore, he changed the switch to that track. There was also evidence that the engineers on such trains generally blew the whistles on their locomotives when approaching that switch, which was not done on the locomotive that ran off while drawing the train from New Haven.

McGrerty was sworn as a witness for the plaintiff, on the trial of this action, and testified that he had been in the defendants’ service eight or nine years ; that he had been familiar with the switch and junction of the two railroads where the occurrence in question happened, since the junction was put there ; that he had had charge of this switch between nineteen and twenty months before Hammond was killed; that he had been away from the switch more than a year, at'work repairing defendant’s road, as a track laborer ; but had been back tending this switch nine or ten months immediately preceding the killing of Hammond. Mc-Grerty had previously been a switchman at another place on defendant’s road, about five months.

There was nothing in McGrerty’s evidence, or that given by any other witness, to show that he was not a laborer of ordinary intelligence; or that his habits were not good; or that he was not attentive to his duties, and industrious. And I am not prepared to say that the evidence was sufficient to establish that the defendants were guilty of negligence, for keeping Mc-Grerty in their employ as a switch tender, where Hammond was killed, after the first accident at that place, which occurred six or seven months before that time. I do not think intelligent men of good habits, who are engineers, or brakemen, or switchmen on railroads, must invariably be discharged by the companies in whose employment they are, for the first error or act of negligence such employees commit, or that such companies will be liable for their second error or negligent act to all other servants of such companies, when the latter sustain damages by reason of such a second error or negligent.act. If such a rule is to be established by the courts, the situations 'of employees on railroads will be very precarious ; and no railroad company can safely retain an employee in their service after he has committed a single error, or act of negligence, however honest or intelligent or faithful he may be, or however good his habits are. I cannot subscribe to such a rule, for the reason that it would be unjust and impolitic. But I will not say that under certain circumstances a single careless act may not evince such incompetency or recklessness in an employee as to call for his immediate dismissal by his employer.

The defendants called Artemus W. Eggleston as a witness, who had charge of their railroad track, placed switches, and employed their switch tenders. He testified that he had known McGrerty twelve years, during which time he had been “in the employment of the defendants in different capacities,” and “ever since he was a young man.” That neither he nor the defendants ever knew anything against McGrerty, except these two accidents, in regard to his capability for the position of switchman ; that after the first accident he saw McGerty; got what facts he could of him respecting it; made inquiries touching it; looked over the ground where it occurred, and reported respecting , it to defendants’ superintendent, who told him to retain McGerty. The defendants offered to show that from Eggleston’s investigation he was satisfied that where the first accident happened the Hew Haven, did not stop, and so reported; which offer was objected to, and the judge excluded it. To which ruling the defendants’ counsel excepted. The defendants’ counsel offered to show that Eggleston reported to the company that he found McGerty free from negligence respecting the first accident. The judge rejected it, and the defendants’ counsel excepted.

I am of the opinion the learned judge erred in rejecting these two offers of the defendants. The evidence that was rejected might have shown, if it had been received, that the defendants’ superintendent had information that justified him, or at the least that tended to justify him, in directing Eggleston to retain McGerty in the defendants’ service as a switchman. It might have established, or have tended to establish, that the defendants were not guilty of negligence in keeping McGerty in their service as a switchman where Hammond was killed, down to the time of that Occurrence. And I hold, if that evidence had been received, it might, with the other evidence in the case, have satisfactorily established that the defendants were not guilty of any culpable negligence in retaining McGerty in their service as switchman where Hammond was killed, and that the plaintiff could not maintain this action. We have the right, on review, to'assume that the evidence offered would have been given; and the test is, if such evidence had been received, would it have been material ? If so, its rejection is an error.

This conclusion or holding is not in conflict with the rule that a master who knowingly employs an incompetent servant, or keeps such an one in his service after notice of his incompetency, is liable for damages resulting from his negligence, to other servants employed in the same business.' This rule is applicable when a switchman is a habitual drunkard, and such fact is known, or ought to be known .to the corporation, and the injury results from his intoxication (Gilman v. Eastern Railroad Corporation, 10 Allen, 233). In Keegan v. Western R. R. Co., 8 N. Y. [4 Seld.] 175, the boiler was defective and dangerous, and its condition in that respect was, and had for some time been known to the defendants by the reports of the engineer, made on five or six different occasions, which were entered on the books of. the defendants kept for that purpose. And the defendants were held liable for damages that one of their servants sustained by the explosion of the boiler. The rule was laid down in Ryan v. Fowler (24 N. Y., 410), “that the principal is responsible for injuries to his employees from his personal negligence or misfeasance” (See McMillan v. Saratoga & Washington R. R. Co., 20 Barb., 449; Wright v. N. Y. Central R. R. Co., 25 N. Y. 562).

All that the defendants were bound to do, after the first accident happened at the switch in charge of Mc-Gerty, so far as Hammond’s rights were concerned, was to exercise ordinary care and diligence in investigating as to the cause of that accident, and the carelessness and competency of McGerty; and if, by such an investigation, the facts ascertained were such as would justify a competent railroad superintendent in retaining McGerty in the capacity of switch tender, the defendants were not guilty of culpable negligence in this case.'

There are other questions in the case which I have not examined.

For the reasons I have assigned, I am of the opinion that the order denying the defendants’ motion for a new trial and the judgment in the action should be reversed, and a new trial granted. Costs to abide the event.  