
    Laura Wooden, Resp’t, v. The Western New York and Pennsylvania Railroad Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1895.)
    
    1. Master and servant—Fellow-servant.
    Where the printed posted rules of a railroad company direct conductors, when in doubt as to their ability to take their trains over the summit, to apply for instructions, the exercise of judgment in this respect by a conductor does not transform him from the mere servant to the agent or representative of the master.
    3. Same—Duty of master.
    The duty of the company to its servants is performed if it furnishes adequate machinery and suitable appliances for the work and employ competent fellow-servants, under proper rules duly promulgated and adapted to the end of meeting possible emergencies of an ordinary or extraordinary character which might be foreseen to arise in the conduct of its operations,
    3. Same—Delebation.
    Unless the duty to be performed is one which the master is supposed to. do in person for his servant’s safety in his place of work, it can be delegated to another so far as to free the master from responsibility for the consequences of some neglect. And where such duty relates to the performance of a part of the servant’s ordinary work and is regulated by rule and published notice, and the servant to whom such duty is delegated, is competent and experienced, a careless and negligent performance of his duties is a risk assumed by his fellow servants.
    4. Same—Appliances.
    In the absence of proof that hand brakes are unusual or inadequate, or that air or steam brakes are safer, the furnishing of freight engine, equipped with hand brakes only, does, not of itself render the company liable for an injury to one of its trainmen occasioned by the unchecked descent of a train down a steep grade.
    5. Same—Unsafe roadbed—Inference.
    The jury will not be allowed to infer, from the testimony of a witness that he had casually observed rotten ties in the roadbed, that a train, rushing down a steep grade beyond the control of its brakes and with increasing momentum, would not have been wrecked except for the presence of some rotten ties, in the absence of proof that the roadbed was unsafe or that the presence of rotten ties was the proximate cause of the wrecking of the train.
    Appeal from order of the general term of the superior court of the city of Buffalo, which sustained plaintiff’s exceptions ordered to be heard in the first instance at general term, set aside a nonsuit directed by the trial court and granted a new trial.
    This action was brought to recover damages for the death of plaintiff’s husband, alleged to have been caused by the negligence • of defendant while he was in its employ.
    
      John G. Milburn, for app’lt; Harlow G. Gurtiss, for resp’t.
    
      
       Reversing 58 St. Rep. 112.
    
   Gray, J.

In January, 1890, the plaintiff’s husband lost his life, as the result of the wrecking of a train on defendant’s road, on which he was employed as a brakeman. The following were the circumstances, as we learn from the record before us. Between the stations of Olean and Emporium, the railroad passes down a steep incline or grade of 110 feet to the mile for five and one-half miles, southerly from a point called Keating Summit-At the foot of the incline is a point called Parker’s Station. North o£ Keating Summit is Portage Station, from whence the ascent of the hill commences. There was a rule in the book of rules of the company, and an order was posted on its bulletin boards, which directed conductors as to the operation of trains over Keating Summit. In the language of the conductor in question :

“The order was to the effect that if we thought we had a train we could not handle either ask for help or ask to set off cars. If I had a train which in my judgment, which the conductor thought, was too heavy to take over the Summit, either to apply for help or set off cars. Apply for help méant to wire Buffalo. The help they would give was, if they have got a spare man on the pusher, they would give you a brakeman from the pusher, and if they could not they would tell you to set off cars. Going south to Emporium you could wire from Portage Creek to Buffalo. At that point I would wire if I thought my train was too heavy. They would either make arrangements for help for me or tell me to set off my cars. If I thought my train was all right, that it was not too heavy, I did not apply at all for instructions. I went right along with my train. In determining about the train at any time I had to take into account the state of the track. I would look the train over and use my own judgment as to that; look the train over as to what cars and the number and condition of the cars and the condition of the night.”

On the night in question, a train was made up at Olean containing between engine and caboose thirty-three oil and freight cars. It was in charge of crew consisting of an engineer, fireman, conductor and three brakemen. The train was, according to the evidence of the conductor, plaintiff’s principal witness, “nothing out of the way, it was not any more than we were supposed to draw.” The company kept an engine at Keating Summit, called a “pusher;” from which an additional brakeman would be supplied, in respose to a telegram to Buffalo for help; if the instructions did not direct to setoff cars from the train. The conductor upon this night did not apply for instructions at Portage Station, upon commencing to cross the hill; because, as he says, “it was his judgment that he could take his train over safely * * * he decided he did not need any help or to set off cars.” When the train was crossing over the narrow space at the top of the hill, the conductor believed the brakemen commenced to set the brakes and to prepare for the steep descent; but he could not see distinctly. The train, however, got from under control and went down the grade with such immense velocity that, as it was said, the fire flew from the wheels. The practice was to set the brakes, while the train was “topping over” the hill, as quickly as possible, until enough were set to hold the train. How well their duty was performed by the brakemen we are not informed. In some way, control was lost of this train and it rushed down the incline; until, at the bottom of the hill, near Parker’s Station, the train was wrecked and all the cars left the track, except the caboose, in which was the conductor, and four cars next to it, and the track was torn up for 900 to 1,000 feet. The dead body of the plaintiff’s intestate was found in the wreck. He had been several years in railroad service and for several mouths with the crew of this conductor; whose employment was upon the freight trains of defendant. He had gone over this part of the road a number of times.

Various grounds are assigned as constituting negligence on the part of the defendant, for which it should be held liable in damages to the plaintiff for causing her husband’s death. The plaintiff argues that this was a dangerous place and that the rails were slippery with frost and “ in clothing the conductor with the sole discretion as to whether the train was safe or not to take over the mountain, the defendant should have promulgated and enforced rules * * relative to inspecting * * * the track as well as the train. ” The difficulty with this point is that there is no evidence that the company was derelict as to .any such duty. Negligence in the performance of a duty to others must be established by facts, which allow of its reasonable inference. It will never be presumed, or left to surmise. There was a book of rules, from which plaintiff offered in evidence several; though they are not in this record, and we cannot assume that any proper rule was wanting, or attention would have been called to it. "According to the evidence of the conductor, upon which the plaintiff’s case mainly depends as to the immediate facts, he judged that he “ could take his train over safely,” and in determining not to apply for any directions he “ exercised his judgment and based it on the condition of the train as it was and everything bearing on the matter.” He knew the night was frosty, what his train consisted of and what was the difficulty of passing a train over the hill from Portage at one side to Parker’s at the other. All these facts were equally within the observation and knowledge of the train hands and the question really comes to this: was the conductor the representative of the master in determining not to apply for more brake men, or to set off cars from the train, before proceeding from .Portage Station ? Was he merely performing one of his duties as an employe, or did he, pro hac vice, represent the company ? A further cpiestion is, if he was such, whether a neglect of duty was shown l Under the rule of the company, the decision of what was to be done at Portage certainly was committed to the conductor’s judgment. But the first and obvious comment is, how could it be otherwise and what more could the company have done for the safety of its train hands than to print and post a rule, which directed conductors, when in doubt as to their ability to take their train over the summit, to apply for instructions ? Of this rule and notice all concerned had knowledge, or were chargeable with it, and the situation being one as apparent to them as to the conductor, if he judged it safe to proceed where is the ground for the assertion of negligence in the company ? The passage of this part of the road was at all times accompanied with the danger attending such steep grades. That, however, was a risk assumed by the deceased, while continuing in the employment of the company, and was known to him by experience. In taking this particular train over, there was nothing unusual, according to the evidence, and the conductor testified that his decision to do so was made after observing “the condition of the train as it was and everything bearing on the matter.” That was a duty which had to be entrusted to some one and its performance was regulated and risks were guarded against by the company in the only conceivable way, and that was by the printed and posted rule above referred to. A conductor of a railroad train is frequently called upon, in the proper exercise of his functions, to use his judgment; but it would be absurd to say, when exercising that judgment, that he was necessarily transformed from the mere servant to the agent, or representative, of the master. That he was the fellow-servant of the intestate in doing his ordinary work has been long settled. Slater v. Jewett, 85 N. Y. 61. The duty of the company, as of any other master, to its servants was performed if it furnished adequate machinery and suitable appliances for the work and employed competent fellow-servants, under proper rules, duly promulgated and adapted to the end of meeting possible emergencies of an ordinary or extraordinary character, which might be foreseen to arise in the conduct of its operations. It is only when the duty to be performed is one which the master is supposed to do in person for his servant’s safety in his place of work, that it cannot be delegated to another so as to free the master from responsibility for the consequences of some neglect. The duty here was not of that character. It related to the performance of a part of the servant’s ordinary work and was regulated by the rule and published notice. There is no pretense that the conductor was incompetent or inexperienced. A careless or negligent performance of his duties was a risk assumed by his fellow-worlcmen. Here, he had before him a duty with respect to conducting the train at a certain point, which was regulated by a rule and which was to be' governed by the apparent facts. Nothing was defective about the appliances of the train ; unless in the fact insisted upon by the plaintiff that hand brakes were used on this locomotive, instead of air, or steam, brakes. But as to that fact, while we maj' assume that brakes might be more quickly applied by the agency of compressed air, or steam, there is no evidence that the hand brakes were inadequate to the purpose, or unusual in hauling these trains. To the contrary, the proof is that heavy freight engines on the road were indifferently used with respect to their brakes and it is not made to appear that the one kind was safer, or more useful, than the other in such an emergency. They had proved adequate before, and, if inference may be indulged‘in from this evidence, the fault was not in the kind of brake used on this engine, but in the setting of the brakes upon the various cars "as the train passed over the summit of the hill and commenced its steep descent The conductor says: “I first noticed something out of the way about the speed the train was acquiring right at the top of the hill almost I saw they were going too fast within a quarter of a mile of the top of the hill.” Certainly the evidence fails to show that the momentum of this train could have been arrested, had the locomotive been equipped with other than hand brakes, and we are left distinctly in doubt as to the point upon the train where, under the circumstances, the brakes would be most effectively applied. At any rate, there was no evidence that the accident was attributable to the inadequacy of the brakes. I think we are forced to the conclusion that this was an accident due to peculiar conditions of the track, or to the fault •of the brakemen in not seasonably applying the brakes ; or to a combination of both causes. If the conductor was at fault for failing to apply for instructions and additional help, then his failure was with respect ,to a matter pertaining to his ordinary work and was the dereliction of one servant towards his fellow-servants in an emergency as to which the master had provided by a rule, known to all and calculated to obviate the possible peril of the employment. There was the peculiar peril incident to the work of the deceased, and he knew that his master had sought to protect him against it by the promulgation of a rule for the conduct of the trains, and, so far as we know, had employed competent fellow-servants and had furnished a properly equipped train. It is impossible to see in what respect the company was responsible for this lamentable occurrence, or what more it could have done to guard against it.

But the plaintiff, also, insists that the defendant was negligent with respect to the condition of the roadbed, and he refers to evidence that some ties in the roadbed had rotted between Keating Summit and Parker’s Station. That was furnished by one witness, who spoke of the condition of things after the wreck had torn up the track and revealed the presence of a rotten tie, and by another witness, who said he had noticed that the ties were defective, or partially rotten, along the track, but where in particular was not stated by him. The difficulty, however, with this evidence, as a subject for consideration by the jury, upon the question of the defendant’s negligence, is that it would have been a matter of speculation with them as to whether that was the cause of the accident. There was no evidence that the roadbed was unsafe, or that the presence of rotten ties was the proximate cause of the wrecking of this train. The witness who had seen rotten ties knew nothing about railroading. He admitted that he had seen the section boss and workmen at work putting in new ties from time to time, and it is a fact, which we might assume knowledge of, that ties must become worn out, or defective, and are to be replaced from time to time. In order to infer an unsafe condition of the railroad track, we should have some evidence to that effect from persons capable, by reason of experience and observation, to speak to the fact. Ho evidence here reveals a failure on the part of the company, to inspect, or to keep its track in an ordinary safe condition. It had proved sufficient in the past; it was being renewed from time to time and, save for the terrible strain, it might have answered every purpose in the future. To allow the jury to infer, because of the testimony of a witness that he had casually observed rotten ties in the roadbed, that this train, rushing down .this steep grade, beyond the control of its brakes and with increasing momentum, would not have been wrecked except for the presence of some rotten ties, would be to allow them to indulge in very wild guesswork. A track safe for the ordinary operation of trains might, and probably would be, inadequate to meet the strain of a train running headlong down a steep grade and it could not reasonably be said, in the absence of some evidence that the roadbed was actually unsafe for the operation of trains, that the proximate cause of the accident was other than the loss of control of the train as it descended the hill.

We have considered the rulings upon the trial and cannot find that any error was committed and we think that the order of the general term, which granted a new trial upon the plaintiff’s exceptions, should be reversed and judgment, of nonsuit should be ordered for the defendant as directed in the trial court.

All concur.

Ordered accordingly.  