
    Robert W. Sheridan, Respondent, v. The Long Island Railroad Company, Appellant.
    
      Negligence—incorrect charge as to the liability of a master to one servant for the negligence of a fellow-servant — when noi-cured by a subsequent correct charge.
    
    In an action brought against a railroad corporation by one of its employees, who was injured while at work with a co-employee under one of the defendant’s cars, upon which the proper signal for their protection had not been placed by either of the men as required by the rules of the corporation, the court charged the jury that, if they found that the plaintiff’s injuries were due solely to the negligence of the defendant’s servant, and that the plaintiff himself was free from negligence, he could recover, and, subsequently, after refusing a request of the defendant to charge that, if the accident in question was in any manner caused by the neglect of a fellow-servant, the plaintiff could not recover, remarked to the jury, without restating the words of the request, that he charged them in the manner requested by the defendant, but did not modify his original charge.
    
      Held, that a new trial should be granted on the ground that the instructions to the jury involved an error and inconsistency seriously detrimental to the defendant.
    Appeal by the defendant, The Long Island Railroad 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 1st day of July, 1897, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 2d day of July, 1897, denying the' defendant’s motion for a new trial made upon the minutes.
    
      William C. Beecher, for the appellant.
    
      Sumner B. Stiles, for the respondent.
   Rumsey, J.:

The action was brought to recover damages for injuries received on account of the alleged negligence of the defendant, and upon the trial the plaintiff had a verdict. A motion for a new trial, which was made upon the judges’ minutes, was denied, and, after the entry of judgment upon the verdict, this appeal was taken from the judgment and order denying a new trial. The plaintiff was employed in the yards of the defendant at Long Island City, and was at work under a car when an engine ran against it and drove the ear back so that a bar which he was using was pressed down upon the rail, catching his wrist between the rail and the bar and cutting off his hand. The car under which he was at work was on one of the repair tracks, and the plaintiff, with another man, was engaged in putting new wheels upon it. He bases his cause of action upon a claim that the defendant failed to make and enforce proper rules for his protection while so engaged. A rule had been made by the defendant to apply to such cases, but the plaintiff insisted that the rule was not sufficient for the purpose, and -was so systematically violated by the employees with the knowledge of the •deféndant’s officers that it had practically been allowed to become a dead letter, and for that reason the defendant, had failed to perform its -duty, towards its -employees; the defendant, on the contrary, insisted that the rule was a sufficient rule; that it was generally enforced,, and that the accident to the plaintiff happened solely because he. and his co-employee at work on this particular car at this time did not see-fit to obey it. The question whether the rule was -a proper one and was properly enforced by the defendant was submitted to the jury in a manner which was not excepted to, and We do not propose to consider the question whether or not the case was properly disposed .of in that regard. The gang in which the plaintiff was at work at the time the accident occurred consisted of another man who had been-in the- employ of the defendant for several" years, and the plaintiff himself. The plaintiff had been thus ■employed only for a few days. The rule provided that, a blue flag, by day, placed at the end of a car, denoted that car inspectors are at Work under or about that car or train. The car or train thus protected was not to be coupled to Or moved until- the blue signal, was ' removed. There were in the yard four repair tracks, one of them, upon which this car was standing,, being known as the wheel-spur track. It was conceded, -that no blue signal was put at the end of this ■car before the men proceeded to work upon it. There was evidence. from, which the jury might have found that it was the duty of ■Gavin, who was working with the plaintiff, to see to it .that the car was properly protected by the flag, and"- .that lie was perfectly . familiar with the rule, but that he did not put up the flag because he did not think- that it was necessary to do so. These facts were not conceded, but there was sufficient evidence of their existence to require that they should be. submitted to the jury, and if the jury found that they existed, .it would necessarily follow that this accident Was caused by the failure of Glavin to-obey this ipile, of the existence of which he was well aware, and the object of which he knew. His failure to obey it would- clearly have been negligence^ arid .for his negligence, as that of a. co-employee, the defendant would not have been liable,, and such negligence would have been" a perfect defense to the action. ' . .

The court in its charge said to the jury that if they found that the plaintiff’s accident and the injury which he received was due solely and wholly to the negligence of the defendant’s servant, and that plaintiff himself was free from negligence, the plaintiff would be entitled to recover. To this direction the defendant took an exception. No rule of law is now better settled in these cases than that when one servant is injured solely through the negligence of a fellow-servant the master is not liable. (Davis v. The Staten Island Rapid Transit R. R. Co., 1 App. Div. 178.) The direction, therefore, given by the court, which was excepted to, was serious error, and the exception was well taken.

At the close of the charge, however, the defendant’s counsel requested the court to charge that if the accident was caused in anyway by the neglect of the fellow-workman of the plaintiff, then the-defendant could not be held responsible and the plaintiff could not recover. The court at first refused to make that charge, but after-wards, at the suggestion of the plaintiff’s counsel, said to the jury, by consent of counsel, that the court charged as requested ; but it did not modify or change the direction given in its original charge, that, if the jury found that the accident was caused wholly by the negligence of the defendant’s servants and the plaintiff was free from negligence, he was entitled to a verdict. As the case stood, then, when it went to the jury, there were two contradictory statements of the law in this regard; the first one clearly erroneous and the second one not stated by the court to the jury in terms, but read or stated to the court by the counsel and only charged by way of a statement that, by consent of counsel, the court assented to what was said. The proposition was one which lay at the very foundation of the plaintiff’s, right to recover. The first direction given to the jury with regard to it was clearly erroneous. Undoubtedly if the answer to the request to charge to the contrary had been given by way of a statement of the law containing a retraction of the former statement contained in the charge, the jury would have been properly instructed upon that subject; but as it stood the only instruction which they actually received in terms from the court was an erroneous one which was seriously detrimental to the defendant, and at the end of the trial it is very doubtful whether the jury had any instruction upon that subject, because the court had given them directions in one way; had acceded to the request of.counsel that the law was different, but had permitted both propositions to stand for the guidance of the jury. It is quite clear that when the jury went out they eould have had no proper instruction in regard to this important element in the case as to which the evidence in favor of the defends ant was greatly preponderating;. and it must be assumed that this error was injurious to" the defendant, and for that reason a new trial must be granted, with costs to the defendant to abide the event.

Van Brunt, P. J., Barrett, Ingraham and MoLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  