
    Rebecca Sutherland, Admr’x, Resp’t, v. The Troy & Boston R. R. Co., App’lt.
    
      (Supreme Court, General Term, Third, Department,
    
    
      Filed December 11, 1889.)
    
    1. Master and servant—Railroads—Negligence.
    Plaintiff’s intestate, an engineer, left Troy, going east, on freight train No, I, two hours late, and reached Petersburg!! J unction at 8:80 A. m. At 6:55, J. , defendant’s operator at the Junction, received this message from the train dispatcher, “ flag and hold train No. 1, for orders.” He put out a red flag. Train No. 2, moving west, was then east of the Junction; at 7:19 a. m., it reached there, having been ordered to meet No. 1 there. An order then came from the dispatcher that No 2 should meet No. I at Hoosick, a station a mile and a half west of the Junction. A copy of the message was given the conductor and engineer of No. 2. J. took down the red flag and did not again put it up, he supposing that No. 1 was to be held only for No. 2. No. 1 met and passed No. 2 on a switch at Hoosick, passed the Junction without stopping as there was no red flag and soon after collided with No. 6 bound west and the intestate was killed. The operator at the Junction had often received orders as to the meeting of No. 1 and No. 2, but never before had had orders to hold No 1 for No. 6. In an action to recover damages for alleged negligence causing the intestate’s death, IMd, that it was for the jury to say whether defendant took proper additional precautions to bring knowledge of its order to the engineer of No. 1, opportunity having presented itself to do so when No. 1 stopped at Hoosick.
    2. Same.
    Although the engineer knew that another train No. 33, moving east, and No. 6, moving west, were scheduled to meet at the junction at 8:52 a. m„ it was still a question for the jury to say whether it was the engineer’s duty to stop there without orders in the absence of a red flag, he knowing that all trains were subject to the orders of the dispatcher.
    
      S. Same—Rules and regulations.
    A rule “ that the speed of freight trains must not exceed fifteen miles per hour exclusive of stops ” means that no more than fifteen miles shall be run in an hour of actual running timo; it does not mean that at no time shall the highest speed exceed fifteen miles an hour.
    4. Same—Contributory negligence.
    A rule of defendant was: “ freight trains must in all cases keep ten minutes out of the way of passenger trains; ” and defendant urged that if the engineer had not run No. 1 too fast while east of Hoosick, he would not have reached the junction more than 10J- minutes before 8:52 A. m., and hence could not have reached the next station east ten minutes in advance of No. 33, a passenger train and, that therefore he should have stopped at the junction. Held, that as he was running under orders, was behind time and as the red flag was absent at the junction, the question of contributory negligence was for the jury.
    ü. Same—Competency oe co-employees.
    The operator at the junction was seventeen years old and had discharged his duties there satisfactorily for several months. The court left his competency to the jury and refused to charge that he was competent. Held, no error.
    Appeal from a judgment for the plaintiff entered upon the verdict of a jury at the Rensselaer circuit; also from the order denying motion made upon the minutes for a new trial.
    The action was to recover damages under the statute for the pecuniary loss to the widow and next of kin of Mark Sutherland, who was killed in a collision upon the defendant’s railroad August 1, 1883.
    The case upon a former appeal is reported, 46 Hun 372; 11 N. Y. State Rep., 841, and the facts there stated were proved upon the second trial, and such further facts as are stated in present opinion.
    
      E. L. Eursman, for app’lt; Charles E. Patterson, for resp’t.
   Landon, J.

The movement of trains upon the defendant’s railroad was controlled hy the train dispatcher at Troy by means of telegrams sent to the operators at the several stations. The train dispatcher performed the service of the master. Johnson was the defendant’s operator at Petersburgh Junction. He performed a servant’s service, and was a fellow servant of Sutherland, the plaintiff’s intestate. Sutherland was the engineer in charge of the locomotive drawing train No. 1 from Troy easterly, successively past stations Hoosick Falls, Hoosick, Petersburgh Junction, towards North Pownall and stations further east.

Train No. 1 was an express freight train, was two hours beliind its schedule time; it reached and passed Petersburgh Junction at 8:30 A. M. At 6:55 A. M. Johnson, the defendant’s operator at Petersburgh Junction, received from the train dispatcher the following order: “ Flag and hold train lfor orders.” Johnson, as was his duty, thereupon put out a red flag; no train is permitted to pass a red flag. Johnson, at his instrument, next heard an order to train No. 2 to meet train No. 1 at Peters-"burgh Junction. Train 2 was at or beyond some station east of Petersburgh Junction and was moving-west. At 7:19 A. M. train No. 2 reached Petersburgh Junction and stopped. Next-, Johnson received from the train dispatcher an order for train 2 to meet train 1 at Hoosick, a station one and a half miles west of Petersburgh Junction. The like order was sent by the train dispatcher to the operator at Hoosick Balls, the station next west of Hoosick for train No. 1. Johnson thereupon took down the red flag at Petersburgh Junction and train No. 2 moved on west and took the side-track at Hoosick and stopped. Train No. 1 next reached Hoosick, and as there was no signal for it to .stop it passed the station and train No. 2 without stopping. Johnson did not replace the red flag at Petersburgh Junction; he supposed that the order to “ flag and hold No. 1 for orders,” was for the purpose of enabling Nos. 1 and 2 to pass each other at Petersburgh Junction, and since those trains had subsequently been ordered to pass each other at Hoosick, he assumed that the order had been superseded by the later order, and ho therefore did not replace the red flag. At least, such is the finding of the jury upon evidence sufficient to support it.

We held upon a former appeal that it was a question for the jury upon the evidence whether the defendant was guilty of any omission of duty in not taking additional precautions to bring the knowledge of its order to the engineer of train No. 1. 46 Hun, 372; 11 N. Y. State Bep., 841. The evidence upon the retrial is in this respect unchanged and we adhere to the ruling. Train No. 1 was stopped by the dispatcher’s order at Hoosick Balls. The dispatcher might there have told the engineer where to meet No. 6, or where next to stop for orders. It was about 7:25 A. M., when train No. 2 passed Petersburgh Junction westerly to meet train No. 1 at Hoosick. Train No. 1 did not reach Petersburgh Junction until 8:30 following, having been delayed, as the dispatcher knew, by the inability of the locomotive to haul the entire train over an up-grade there, and thus was compelled to separate it in two divisions. The defendant contends that Sutherland, the engineer, ought to have stopped at Petersburgh Junction, notwithstanding the absence of the red flag. This contention is based upon the fact that according to the regular schedule, passenger train No. 33 moving east, and freight train No. 6 moving west, were appointed to meet each other at Petersburgh Junction at 8:52 A. M., and that Sutherland knew this. The answer, the sufficiency of which it was for the jury to consider, is that notwithstanding the schedule the movement of all these trains was controlled by the train dispatcher at Troy. He knew where trains No. 33 and No. 6 were, whether on or behind time, and it was his duty to give to every train the proper orders. For Sutherland to stop át Petersburgh Junction without orders was for him to interfere with the dispatcher’s business and directions.

The defendant further urges that Sutherland ran'train No. 1 from Hoosick Falls past Hoosick and Petersburgh at a rate of speed forbidden by a rule of the company. The rule relied upon is: “ The speed of freight trains must not exceed fifteen miles per hour exclusive of stops, except in cases where schedules are run faster than fifteen miles an hour.” This means that no more than fifteen miles shall be run in an hour of actual running time; not that at no time within the hour shall the highest speed exceed fifteen miles an hour. From Hoosick Falls to the place of collision is seven and one-half miles.

Sutherland ran train No. 1 faster than at the rate of fifteen miles an hour after he made a successful start from Hoosick Falls. It is plain that in starting the train and in approaching its stop the train must run much less than at the rate of fifteen miles an hour, and, therefore, to make fifteen miles in an hour it must run faster than at that rate some portion of the distance between stops. The testimony showed that it was well understood that when a freight train was running down grade it would run faster than at that rate.

From Hoosick Falls to the place of the collision it is both up and down grade, with a considerable portion nearly level. Sutherland probably availed himself of favorable grades to make up for some of the time he had lost at Hoosick Falls. As the collision occurred before the fifteen miles east of Hoosick Falls were completed, we cannot know whether this rule was violated.

Another rule is urged by the defendant, namely, “ Freight trains must, in all cases, keep ten minutes out of the way of passenger trains.” Now, train No. S3 was a passenger train, running east from Troy, and due at Petersburgh Junction at 8:52 A. M. It is urged that if Sutherland had not run train No. 1 too fast east of Hoosick Falls he would have reached Petersburgh Junction not more than ten and one-half minutes before 8:52 A. M., and hence could not have reached the next station east of that station ten minutes in advance of the passenger train, and therefore should, in obedience to the ten-minutes rule, have stopped at Petersburgh Junction to allow the passenger train to pass him.

Evidence was' also given showing that just after Sutherland passed Petersburgh Junction the train dispatcher started to send an order to the operator there for trains 1 and 6 to pass each other there, but was advised by the operator that train No. 1 had just passed.

If Sutherland'had stopped at Petersburgh Junction for the passenger train, or had arrived there after the delayed order to meet No. 6 there had been dispatched, the collision would not have occurred. The question is, was he guilty of negligence or misconduct contributing to his own death ?

The jury considered the circumstances. Sutherland was behind time with his train; he was running in obedience to the dispatcher’s orders; he was to stop for these wherever he saw a red flag; he did not know where the other trains' were; he knew that the dispatcher did; doubtless where he had a good opportunity to make speed he made it, relying upon his being reported from the stations he passed; when he approached Petersburgh Junction he looked for the red flag, and there was none; he would naturally conclude that the dispatcher did not want him to stop there; the dispatcher knew best; that he was not to meet No. 6 there; that he was not to wait for the passenger train there; that he must run on to the next station. The jury must decide whether he was acting carefully according to the lights he had; whether, notwithstanding his best judgment he was misled by the fatal omission of the red flag; whether, notwithstanding his high speed, his knowledge of the schedule time of trains 6 and 33, and the ten minutes rule, everything would have gone well, if the red flag had been in its proper place. If so, then the absence of the red flag was the proximate cause of his death. If the flag had been in its proper place his high speed on favorable grades would not have been blameworthy. If the flag had been in place he would have 11 slowed down ” in approaching and stopping at Petersburg!! Junction, and thus have made his arrival there appreciably later. Did the absence of the flag make his high speed blameworthy ? The jury thought not. We think the verdict upon this part of the case justified by the evidence.

Johnson, the operator, was seventeen years of age at the time of the accident There was evidence that he had performed his duty for three or four months without fault or neglect and was of good intelligence. The court left his competency to the jury, and refused to charge that upon this evidence the jury should find him competent. The point was made by the defendant that the first order to “ flag and hold train 1 for orders ” was in no way recalled or superseded, and that Johnson was negligent in not replacing the red flag after train No. 2 had passed west, and therefore Sutherland was injured by his co-employee’s negligence.

Now it was possible that the jury might find that Johnson was negligent in not replacing the red flag, and it was possible that in view of the orders following the first order they might find that it was just such negligence as a youth of seventeen would be especially liable to fall into. If they found that the fault was Johnson’s, then they might well consider the question whether an operator of mature judgment ought not to have been assigned to a station requiring such accuracy of interpretation and comparison of orders.

The judgment should be affirmed, with costs.

Learned, P. J., and Putnam, J., concur.  