
    Elias Warn, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 26, 1895.)
    
    1. Master and servant—Rules. p
    A corporation, in making rules for the government of its employes, is. bound to use ordinary care and to anticipate and guard against suck accidents and casualties as may be reasonably foreseen by its managers exercising such ordinary care.
    2. Same—Risk.
    The rule that a servant takes the risk of the business is subject to the qualification that the master must exercise reasonable care to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from the negligence of co-employes ; and the negligence of one servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed his duty.
    3. Same—Question of fact.
    Under the facts and circumstances of this case, it was held not to be error to submit to the jury the question whether defendant was guilty of negligence in failing to promulgate and enforce a rule, in the event the jury found such á rule applicable to the train where the injuries occurred, and whether defendant failed in its performance of the duty it owed to provide for its inspectors such appliances, and a system of transacting its business regulated by a rule that would render their work reasonably safe.
    Appeal from a judgment in favor of plaintiffs.
    
      Hiscock, Doheny & Hiscock, for app’lt;
    
      Jenney & Marshall, for
    resp’t.
   Hardin, P. J.

The respondent, was in the employ of the defendant as an inspector of its cars at the Syracuse depot on the 29th of May, 1890, when he received injuries by the sudden movement of the cars, without any warning known to him of an intention to move the cars under which he'was engaged in inspecting. He seems to have been an inspector for many years, and his duties- were to inspect the cars that came into the depot. His habit was to commence at the rear end, sound the wheels if they were cast iron, and, if they were paper wheels and steel tires, he looked them over, and looked at the brakes and brake rods, brake beams, shoes, and at the air hose. This work was performed by going under the cars and in between the tracks. As the train approached the depot, the depot master informed the plaintiff that an excursion train was coming from the east, going through to Buffalo, and, when the train was pulling in, the depot master called out: “Hurry up, boys! Look over the train, so we can get it out before Ho. 10 comes in.” The plaintiff, as well as" his associates, commenced work at the rear end, and, when between the cars, he coupled the hose, and fixed the handles, and coupled the safety chains, as he went along, and while thus engaged in the performance of his work, he rose up to back out, when he “ got caught.” He received no notice or warning that the train was to be put in motion. The plaintiff offered in evidence a rule known as Ho. 36 from the printed rules of the defendant, which was "in the following language:

“ The blue flag by day, and a blue light by night, placed on the end of • a car, denote that car inspectors are at work under or about the car or train. The car or train thus protected must not be, coupled to or moved until the blue signal is removed by the car inspectors. When a car or train standing on a siding is protected by a blue signal, other cars must not be placed in front of it, so that the blue signal will be obscured, without first notifying the car inspector, that he may protect himself.”

It appeared by the evidence that “the rules of the company are bound in pamphlet form, and divided under headings, and are classified; and rule 36, introduced in evidence, with several others, is under the head of ‘ Train Signals.’ ”

At the close of the plaintiff’s evidence, the defendant moved for a nonsuit, upon several grounds, which was denied, and an exception taken. Evidence was given during the trial that there had been a practice of several years’ standing to omit the observance of the rule when inspecting trains at-the Syracuse depot. Controversy was made upon the evidence as to whether the rule applied to passenger trains. We think the evidence warranted the court in submitting to the jury, “as a question of fact, whether the rule did apply to passenger trains as they arrived in the station in Syracuse or not, in view of all the circumstances.” After announcing the language we have just quoted, the judge observed: « .

“ Taking into account as one of those circumstances, the fact that no attempt was ever made, since that rule was devised, to enforce it. If you find, gentlemen, that that rule was made for the purpose of applying to railroad trains that came into the depot, and you also find that it was not promulgated, and that it was not enforced, then, gentlemen, those are important considerations for you to have in mind in deciding whether the defendant used reasonable care or not for the protection of its employees, in the dangerous position to which it had assigned them to duty.”

The judge properly instructed the jury that if they found the rule did not apply to defendant’s station and passenger trains at the station, and that it was not promulgated and not enforced, they might inquire whether the defendant “ provided in place of that rule some other reasonable protection adequate to the situation.” And he followed the instruction by an observance that the law required reasonable diligence in the premises, and what is reasonable diligence is a question for the jury, under the circumstances of this case.

This case was before us on a former appeal, and our decision •appears in 80 Hun, 71; 61 St. Rep. 585, where we held, viz.:

“ The, law imposes upon a railroad company the duty to its employees of diligence'and care, not only in furnishing propér and reasonably safe appliances and machinery, and skillful and careful employees, but also of making and promulgating rules which, if faithfully observed, will give reasonable protection to the employees ; and it Is also required to exercise such a supervision ■over its servants, and the prosecution of its business as to justify the belief that the business is being conducted in pursuance of such rules. A corporation, in making rules for the government ■of its employees, is bound to use ordinary care, and to anticipate and guard against such accidents and casualties as may be reasonably forseen by its managers exercising such ordinary care. The rule that a servant takes the risk of the business is subject to the •qualification that the master must exercise reasonable care to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from the negligence of coemployees; and the negligence of one servant does not excuse the master from liability to a coservant for an injury which would not have, happened had the master performed his duty.”

We have made a careful inspection of the evidence produced •on the trial now before us, and are of the opinion that the trial judge followed the rule of la$ laid down when we disposed of the former appeal in this ease, and that" he committed no error in submitting to the jury, as a matter of fact, to determine whether the •defendant was guilty of negligence in failing to promulgate and enforce the law whieh it had adopted, requiring the use of blue flags and blue lamps upon the cars under which inspectors were at work, .in the event the jury found the rule was applicable to the train where the injuries occurred, and whether the defendant had failed in its performance of the duty which it owed to provide for its inspectors such appliances, and a system of transacting its business, regulated by a rule that would render their work reasonably safe. Alel v. D. & H. Canal Co., 103 N. Y. 581; 4 St. Rep. 29; s. c., on subsequent appeal, 128 N.Y. 662; 40 St. Rep. 626; Whittaker v. D. & H. Canal Co., 126 N.Y. 544; 38 St. Rep. 523.

2. We are of the opinion that the trial judge properly submitted the question as to the plaintiff’s contributory negligence to the jury. Bearing upon that question was the evidence of Swan-ton, to the effect that he had directed the men to get out from under the cars; and in connection with that eyidence was the testimony that the plaintiff did not hear the direction when it was given, as he was engaged in work which absorbed his attention, ■and that fact, together with his testimony as to what transpired at the time be received his injuries, presented considerations properly left to the jury to determine whether he was guilty of negligence which contributed'to the injuries which he received.

The learned counsel for the appellant calls our attention to N. Y. C. & H. R. Railroad Co., 136 N. Y. 77; 48 St. Rep. 843. We tliinlr that case is distinguishable from the one in hand. In the course of the opinion delivered in that case, Andrews, J., said: “The evidence did not disclose any omission of duty by the defendant; ” and he added: “ Nor is it claimed that proper regulations had not been established defining the duties of employees, and for the management for the business of the yard.” And in in many other respects the case differs from the one before us.

We have looked at the exceptions taken to the charge as delivered, and to the refusals to charge as requested, and are of the opinion .that they do not require us to interfere with the verdict. The trial judge seems to have carefully regulated the course of the trial by the doctrine laid down by us upon the former appeal. Under such circumstances, we are of the opinion that it is our •duty to adhere to the decision made when the case was considered when the nonsuit was brought in review.

Judgment affirmed, with costs.

All concur.  