
    Laura Wooden, Adm’rx, Pl’ff, v. The Western New York & Pennsylvania Railroad Co., Def’t.
    
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed May 3, 1892.)
    
    1. Master and servant—Railroad—Delegation or authority.
    Where the determination of the question whether a train of a certain size and character can he safely run down a mountain grade by gravity is left to the conductor, his decision in relation thereto is that of the master, and not of a fellow servant of a brakeman upon the train who is injured by an accident resulting therefrom.
    2. Same—Negligence.
    After the accident it was found that some of the brake-shoes had oil upon them. Held, that this was a defect as to which the brakeman did not assume the risk, and that the defendant could be held liable for not furnishing reasonably safe and proper appliances.
    3. Same—Rules—Promulgation.
    It appeared that the rule in relation to taking trains over the mountain was not in the book of rules, but was posted on the bulletin boards. The evidence tenc.ed to show that such notices so posted are sometimes torn down. Deceased had been in defendant’s employ three and a h^lf months. Held, that in the absence of proof that it was upon the bulletin board during the time of his employment, it could not be taken as a conclusive fact that he had notice of and knew of such rule.
    (White, J., dissents)
    Motion for a re-argument upon plaintiff’s motion for a new trial.
    
      John G. Milburn, for the motion; Harlow C. Curtis, opposed.
    
      
       See 43 St. Rep., 218.
    
   Hatch, J.

I am not prepared to give assent to the conclusion reached by my associate upon this motion, that the court, in sustaining the plaintiff’s exceptions, assumed a rule of law in conflict with established authority regulating the relation and liability between master and servant and of servants to each other. On the contrary, I think the rule of law announced by Judge Beck-with, in deciding this case, as applicable to the facts disclosed by the record in relation to these questions, expresses the correct rule of law. It is much more difficult to find evidence connecting the cause of the accident with the negligence of the defendant; however, the conclusion is reached that this may be done. It appears from every witness who spoke upon the subject that upon this night there was a heavy frost, that this produced a bad slippery rail; that it was much more difficult to set brakes under such conditions than if the rail had been dry, by reason of which the holding power of the brake was perceptibly reduced. It is also in evidence that oil was found upon the brake-shoes, which would materially lessen the friction and grip of the brake. A greased brake-shoe, it is not strained to say, constitutes a defect in the brake, for there can be .no difference between a brake-shoe rendered-wholly or partially useless by grease, and one which from a defective chain or other cause prevents it coming firmly against the wheel. The object sought is to create friction and resist the motion of the wheel, and whatever lessens its power in this respect to the extent it is lessened creates a defect. An examination of the cars not broken up, made after the accident, showed the brakes 'upon them set; the conductor had given to the brakemen all necessary instructions and saw that they were properly carried out. For he states that he knew the brakes were set, as they left the top of the grade, “ by the way the train tipped over the hill ” and also from seeing the lights moving upon the cars when he found the train was running too fast and went upon the top to make an observation and set the brakes. From this testimony the jury would have the right to draw the inference that the brakemen were promptly and properly performing the duties devolving upon them so far as in their power.

It is further insisted that the court overlooked the question that deceased by continuing in defendant’s employ, with knowledge of defendant’s method of operating its trains over Keating mountain, as provided by its rules and orders, assumed the risk attendant thereon. If the greased brakes are to be considered as a defect in the brake, and I think they may be, it is quite clear as to that he took no risk and defendant could be held liable in not complying with the rule which requires the furnishing of reasonably safe and proper appliances, if such defect be connected with the cause of the accident. But it is not clear that defendant’s claim can be upheld as matter of fact. The conductor was the sole judge as to whether the train, under the circumstances, could be safely taken down the mountain. The order to leave the cars came to the conductor personally. Such order was not posted upon the bulletin boards, but the standing order with respect to operating the trains over Keating mountain was, but whether it was posted there during Wooden’s employment the record does not disclose, or whether it was in fact ever brought to his attention does not appear. What does appear is this. That standing orders not appearing in the book of rules the men find on the bulletin boards. That the rule in question had been posted upon the bulletin board for a long time. The conductor did not remember when he last saw it, but knew of its existence; did not know if it was on the black board at the time of the accident; that they are sometimes torn down, and for all he knew this may have been. Deceased had only been in the employ of the road for three and one-half months, and a fair inference from the conductor’s testimony is that the rule was posted a long time before. Whether it was there when deceased entered upon his employment, or whether it had then been torn down, does not appear. I therefore think that it may not be taken as a conclusive fact that deceased had notice and knew of the rule regulating the management of trains down Keating mountain. The law requires not only that the rule be formulated and adopted, but that it be promulgated. Corcoran v. D., L. & W. R. Co., 126 N. Y., 673; 38 St. Rep., 251.

Promulgation is to make known; it means that such rule shall be brought to the attention of the servants affected thereby, or that it be given such publicity as that the servant in the proper discharge of his duties is bound to take notice of it, when knowledge is presumed. If the rule was not upon the bulletin-board when deceased entered the employment, then as to him there was no promulgation, and he was not bound to take notice of it, and search is vain to show that he received information from any other source, or from that. AYhether this was a proper promulgation of the rule as to deceased I think was a question for the jury.

Upon all the facts of the case, the conclusion is reached that the jury would have been authorized in finding negligence upon the part of the defendant in attempting to take the train down the inountain under the existing circumstances and conditions; that thereby control was lost of the train by reason of the condition of the track and insufficient and defective brake power, producing the accident and injury complained of.

These views lead to a denial of. the motion for a reargument.

White, J.

If the motion for a reargument is to prevail, it must be upon the sole ground that the order of the general term granting a new trial is in conflict with a controlling decision upon the question as to the relation which existed between the conductor of the train of cars, upon which the deceased lost his life, and the deceased, who was at the time a bralceman upon the same train. The theory of the plaintiff upon the trial, and that adopted by the court in ordering a new trial, was that the evidence given would have justified the jury in finding that the injury complained of was caused by the failure of the conductor in charge of the train to select and make use of the proper means and appliances for safely moving the train over Keating Mountain. As the record stands, it must be assumed that by dividing the train, and moving it in sections, or by enlisting more help in the work of handling it, it might have been taken over with safety; at any rate there is no evidence that it could not have been. The means- and appliances to do the work with safety were supplied by the defendant, but the manner or'mode of adjusting and using them was left to the discretion of the conductor, and for the purpose of this motion (only) it may be assumed that the proximate cause "of the action was the failure of the conductor to properly adjust and use such means and appliances.

Under the circumstances the whole duty of the defendant to the deceased was discharged when it placed proper and sufficient means and appliances for the movement of the train in the hands of the conductor and vested on him the right to use those means and appliances in his discretion, and his failure to make a proper use of them was that of a co-servant and not of the master.

The trial of the case proceeded, and the order granting a new trial was based, upon the assumption that for the time being the conductor of the train occupied the relation of master to the deceased, and not that of a co-servant; in other words, that in attempting to take the whole train over the mountain at once instead of dividing it or enlisting more help in handling it, the conductor was discharging a duty imposed by law upon the defendant.

The particular business or undertaking in which the conductor and deceased were engaged at the time of the accident was that of moving a train of cars over a mountain. As to all work necessary to be performed in that business it seems to me to be settled by the controlling decisions of the courts of this state that the conductor and the deceased were co-servants.

The record shows the train to have been in all respects an ordinary one, that the deceased knew, or was chargeable with knowledge of the way in which trains were moved over the mountain and of the fact that the means and appliances to be used were in the discretion of the conductor.

The case then, in brief, is one where the master has supplied his servant with sufficient means and appliances for doing the work in hand, but has left the selection of those means and appliances to the judgment and discretion' of one of those servants, to the knowledge- and with the assent of the others, and one of the latter is injured by the failure of the one vested with such discretion to properly adjust, select or use the means and appliances furnished by the master. It was the duty of the defendant to provide suitable means for taking the ill fated train over the mountain, but the selection and use of those means must necessarily be entrusted to its servants in charge of the train; in the nature of things no general agent could be present to discharge the duty. I think the responsibilty for the proper adjustment, selection and use of those means and appliances was with the conductor of the train as a co-servant with the deceased, and not his master. Such selection, adjustment and use of those means and appliances was a part of the ordinary and necessary work to be done. The conductor was not more than a superior agent engaged in the same general business with the deceased, and for an error of judgment on the part of such agent under the circumstances disclosed by the record before us, the master is not liable.

The deceased took the risk of the defendant’s mode of doing business, in which he lost his life, though a safer one might have been followed, because he knew or was chargeable with knowledge of the way in which that business was done.

I am of the opinion that a re-argument of the case should be allowed on the ground that the order granting a new trial is in conflict with the law holding that the master is not liable to one servant for the injury caused by the negligence of another. Sherman v. The R. & S. R. R. Co., 17 N. Y., 158; Dobbins v. Brown, 119 id., 188; 28 St. Rep., 957; Crispin v. Babbitt, 81 N. Y., 516; Neubauer v. The N. Y., L. E. & W. R. Co., 101 id., 607; Rose v. Boston & Albany R. R. Co., 58 id., 217.

Motion for re-argument denied.  