
    Kate Ward, as Administratrix, etc., of Joseph M. Ward, Deceased, Respondent, v. The Manhattan Railway Company, Appellant.
    
      Negligence — injwry to a switchman coupling two sections of a train being made up, from, another car being backed against one of such sections—obligation of the railroad, company to establish rules—when itisnot a question for the jury— liability for allowing its rules to be violated — what rules do not apply to the making up of trains—application of the Employers' Liability Act to negligence cases.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the intestate was a switchman employed at the terminal station of the defendant’s elevated railroad;, that before daybreak one morning, while the intestate was engaged in coupling two sections of a train in process of being made up, two cars in charge of one Hector, another switch-man, were moved southerly against the train which the intestate was coupling, causing him to sustain injuries which resulted in his death.
    Hector was operating the two cars from the northeasterly end of the northerly car, the motive power being in that car. No lookout had been stationed on the front platform of the southerly car. Hector attributed the accident to his inability to see the train which the intestate was coupling.
    It appeared that the rules promulgated by the defendant required its employees to operate their trains at such a speed that '' you are positive you can, stop in the distance you can see,” and that “ All trains on main tracks must be drawn and not pushed, except in case of accident or other emergency, when a competent man must be stationed on the rear end of the last car, with the bell cord in hand ready to give signal, and a man with a red signal sent back to flag the following train. No train must be backed until the following train has been notified and stopped.”
    It was not shown that any other rules which would afford greater safety to the defendant’s employees were in use by other railroads, nor were experts called to show the necessity or practicability of any other rules.
    The court instructed the jury that,,as a matter of law, the rules promulgated by the defendant were applicable to the movement of cars in making up trains.
    
      Held, that, assuming this instruction to be correct, it was improper for the trial judge to leave the sufficiency of such rules to be determined by the jury as a question of fact;
    That, assuming that the rules in question were applicable to the making up of trains, the defendant might still be held liable, as the evidence warranted a finding that these rules had been customarily violated.
    
      Semble, that the rules did not apply to the making up of trains, but only to the movement of trains after they had been made up.
    The Employers’ Liability Act (Laws of 1902, chap. 600) imposes upon the employer no new liability for a failure to make proper rules and regulations for the safety of. his employees.
    
      Sections 1 and 2 of the Employers’ Liability Act apply only to causes of action arising thereunder, but section 3 thereof, which prescribes a new rule with' reference to the assumption of risks by an employee, applies to all causes of action thereafter arising in favor of employees against their employers, based on the negligence of the latter.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on -the 21st day of October, 1903, upon the verdict of a jury for $5,000,' and also from an order entered- in said clerk’s office on the 26th day of October, 19Q3, denying the defendant’s motion for a new trial made upon the minutes. •
    This is a statutory action to recover for the death of Joseph M. Ward, who was a switchman in the employ of the defendant and who sustained fatal injuries about six o’clock in the morning of -the 10 th day of January, 1903, while coupling cars at the Pelham avenue station at One Hundred and Ninetieth street. The accident occurred before daylight. This was the terminal station for trains from the south, but -the road continued on to Bronx park. ■ Trains known as shuttle trains operated between Pelham and the Bronx; but these trains did not commence running until six-twenty-ñve a. m., and had not commenced, running at -the time of the accident.. At Pelham avenue the station lies between the two main or north and south-bound tracks, and a little north of the station a siding or extra track branches off from each of them inwardly and toward the north. The cars when not in use were stored on these sidings. At this time of the morning trains were intended to be run on three-minute headway. Trains were made up and started south from either side of the station, but trains from the south only came on the northbound track. There were three cars standing on the south-bound track, the southerly end being nearly opposite the middle of that part of the .station in which the ticket office is located; and three .other cars had been moved northerly on this track from south of the station to be coupled to them to form a train of six cars. These two three-car sections of the train had been moved together within coupling distance, and the déeedent was standing on the track for .the purpose of making the coupling. About the time the decedjnt was engaged in making the coupling one Hector, another switch-man, moved two cars down the south-bound track from the north and bumped against this train, inflicting the injuries which resulted in the decedent’s death. The two cars Hector was moving were coupled together, the motive power being in the northerly car, and he was operating them from the northeasterly corner of that car. Hector was endeavoring to get these two cars onto the north-bound track with a view of making up another train there. The switch connecting the siding with" the south-bound track was within 100 feet north of. the station. The north-bound track was reached from ,the south-bound track via this siding, and to reach the siding Hector was obliged to move these cars past this switch to the south. The motor car was lighted but the southerly car which he was pushing was dark and could not be lighted as it was not connected with the electric current, which could only be connected by attaching a car at the other end. There were two other switchmen upon the train of six cars engaged in performing duties with reference to preparing it for starting, and it was brilliantly lighted by electricity. Hector says that as he was moving the two cars down he observed the train standing there, and he stopped north of the switch to wait until it moved out; that after standing there a minute or so he thought he observed the train moving out and started on; that the track curved there so that the car ahead obstructed his view as he moved forward, and that he did not discover that the train was still at the station until the collision. There is other evidence tending to show that to one in Hector’s place the view of a train in front would not be obstructed; that its lights could be seen through the front windows of the cars coming down; but Hector’s testimony indicates that the windows were frosted, and that the line of the car seats obstructed his view. In the vicinity of the switch there was a disc or “ high ball ” signal, which was operated by a lever from near its base, for the guidance •of shuttle trains, indicating by a white disc by day and a white light by night when the track was clear, and a red disc by day and a red light by night when there was danger. This signal, however, was not in use at the time of the accident, and was not used in connection with making up trains. The plaintiff alleged, among other things, that the defendant was guilty of negligence in failing to make and promulgate proper rules and regulations for the movement of its. cars and trains at this station while being coupled. • The plaintiff proved certain rules made by the defendant, and, among others, rules 19 to 23, inclusive, and 257, which are as follows:
    “ Rule 19. If you can see ahead the distance of a block, run so that you can stop your train in that distance. If you can See only 50 feet ahead, run so that you can stop in that distance. Reduce the speed of your train so that you are positive you can stop in the distance yon can see. ,
    “ Rule 20. When running\between automatic signals, on leaving a signal that is clear, govern your speed to seeing distance, in order that there may be no possibility of running by the next signal in-case it is red. This will also permit you to stop in casé of anything occurring unusual within the automatic block. In all cases of doubt take the safe-side.
    “ Rule 21. Do not rely on information from any one as to the number of minutes ahead of you a train is, in foggy weather, as the preceding train may have stopped just after passing out of sight., Govern yourselves strictly in accordance with the rules laid down above. This will afford absolute safety and prevent accident to your train when fogs prevail.
    “Rule 22. This rule also applies in snowstorms or whenever the vision is obscured.
    “ Rule 23. Remember always that safety is the first consideration.”
    “ Rule 257. All trains on main tracks must be drawn and not pushed, except in case of accident or other emergency, when a competent man must be stationed on the rear end of the last car, with the bell cord. in hand ready to give signal, and a. man with a red signal sent back to flag the following train. No train must be backed until the following train has been notified and stopped.”
    The plaintiff also gave evidence tending to show that for a long time it had been customary to move cars, for the purpose of making up trains, in. the manner Hector was moving these cars on the day in question, that is to say, by pushing the cars when the motor car-was so located as to require it or the convenience of the business required it, and without having a man on the platform in front as, the. cars were moving.. The other material facts are .'stated in the opinion. •
    
      
      John F. McIntyre, for the appellant.
    
      John W. Weed, for the respondent.
   Laughlin, J.:

The charge of negligence against the defendant which was submitted to the jury was its failure to make, promulgate and enforce suitable and sufficient rules for the guidance of its employees with reference to their own safety in moving cars and making up trains. The learned trial justice instructed the jury that as matter of law the rules quoted in the statement of facts were applicable to the movement of cars in making up trains. It would seem from some of the expressions contained in the charge. that the court intended to instruct the jury that these rules, if enforced, were sufficientbut the court declined to rule that the rules were sufficient and their, sufficiency was left, as a question of fact, to the determination of the jury and counsel for the defendant excepted. This, we think, was error. Assuming that the rules forbidding pushing cars, except in cases of accident and then requiring a man on the rear platform, and requiring a motorman to regulate the speed so that he could stop in the distance that he could, see ahead,-were-applicable to the move^ ment of cars in making up trains, it is manifest that if they, or any of, them, had been observed the accident would not have happened. It was not shown that. any other rules that would afford greater safety to the employees were in use under similar circumstances by other railroads, nor were experts called to show the necessity or practicability of any other rules. In these circumstances to leave'the question of the sufficiency of such rules to the jury is to permit them to speculate without any guide as to the necessity for other rules; and there may have been no uniformity of opinion on the part of the jurors as to the nature of the other rule or rules that they were left to find should have been adopted and promulgated. (Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582; Morgan v. H. R. Ore & Iron Co., 133 id. 666; Corcoran v. N. Y., N. H. & H. R. R. Co., 58 App. Div. 606; Kapella v. Nichols Chemical Co., 83 id. 45 ; Larow v. N. Y., L. E. & W. R. R. Co., 61 Hun, 11.) We are of. opinion, however, that these rules did not apply to the making up of trains. They appear to be applicable only to the movement of trains after the . same are made up. The defendant rested without offering any evidence. Whether it had any rules regulating the making up of trains or whether' any rules regulating the making up of the same are in use by other,roads or are practicable was hot shown. If. these rules are applicable to the making up of trains the evidence would warrant the finding that they were customarily violated, and that, the. defendant was chargeable with knowledge of such violations. Doubtless this is the theory on which it was intended to submit the. •case to the jury; but, for the reason already stated, it is not at all •certain that the verdict was rendered on that theory. The errors already pointed. out require. a new trial, but in awarding the same we deem it proper to make some further observations. The court, submitting the case to the jury, instructed them upon the "law concerning the assumption of risks by an employee as the.law existed' prior to the enactment of, the Employers’ Liability Act. (so called). Nb new liability is created by that act for the failure of an employer ' to make proper rules- and regulations for the safety of his employees. This action, therefore, is based Upon the common law. It has been decided that sections 1 and 2 of the Employers’ Liability Act (Laws of 1902, chap. 600) apply only to causes of action arising thereunder ;' but it has fiot been decided that none of the provisions of the act apply tó causes of action for negligence in general regardless of whether they arise under the statute or at common law. Section 3 of the act is manifestly of general application to all actions by -servants against masters for negligence upon causes of action arising thereafter.' It prescribes a new rule with reference to the assumption of risks more favorable to the employée than the rule that previously obtained, and we áre of opinion that it is applicable to this 'case.

It follows, therefore,, that the judgment and order should be reversed' and a new trial granted, with costs to appellant to abide the -event. ■ ■

Patterson,. Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment and ordef reversed, néw trial ordered, costs to appel- '. lant to abide event..  