
    John J. Berrigan, Adm’r, Resp’t, v. The New York, Lake Erie & Western R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    1. Negligence—Railroads—Absence of rule requiring a signal.
    In an action for negligence it appeared that the deceased before daylight was engaged in coupling a caboose to some cars of a freight train which had no engine; that other freight cars stood east of those in question upon-the same switch; that an engine backed down to get these cars, drove them back to the cars where deceased was occupied, and the latter was caught between the caboose and the car he was coupling. No signal was displayed to warn the men of the engine that a train was being made up west of them on the same switch, and there was no rule of defendant requiring a signal or warning in such an event. Held, that it was a proper question for the jury whether the absence of such a rule did not amount to negligence upon the part of defendant.
    3. Same—Contributory.
    A rule of defendant required brakemen to use a coupling stick, and the deceased had none when killed. Held, that the question of contributory negligence was for the jury.
    3. Same.
    But where it appears that the stick would under the circumstances have been useless, the deceased, if the jury so find, would be excused in not having it with him.
    Appeal by the defendant from a judgment entered on the verdict of the jury at the Livingston circuit, and from an order of special term denying the defendant’s motion for a new trial on a case and exceptions.
    
      J. W. Stevens, Jr., for app’lt; E. A. Nash, for resp’t.
   Dwight, P. J.

The action was for the loss of life of the plaintiff’s intestate, occasioned, as alleged, by the failure of the defendant to establish certain reasonable and necessary rules for the government of its servants.

The deceased, Edward Berrigan, was in the employ of the defendant as rear brakeman on a way freight train, which was made up at Corning, and ran to Rochester. The train was made up on siding No. 2 in the Corning yard at an early hour in the morning, which, at the season when the accident occurred, was before daylight. On that morning several cars belonging to the “ Rochester way freight,” including the caboose, were standing without'an engine on the west end of siding No. 2, and two or three cars, which were to be attached to an east bound freight train, stood on the same siding further east. At this time it became the duty of the deceased to couple the caboose of his train to the car which preceded it, and it was while he was in the performance of that duty that he received the injury which resulted in his death. An engine which was engaged in making up the other train came on to the siding at the east end to draw out the cars which stood east of the caboose, but was run against them with such force as to drive them back against the caboose, and the latter against the car with which it was to be coupled, and the deceased was crushed between the two. There was no signal displayed, nor other means adopted, to warn the men in charge of the engine on the east end of the^ siding that a train was being made up on the west end, and that men were likely to be engaged in coupling the cars of the latter, and there was no rule requiring that such signal should be displayed or warning given. The failure to provide such a rule is the specific negligence charged against the defendant in this action; and the precise question upon this branch of the case is whether a reasonable regard for the safety of its employes required the adoption of such a rule. Abel v. President, etc., D. & H. C. Co., 103 N. Y., 581; 4 N Y. State Rep., 269, and cases cited.

We think that question was properly submitted to the jury. It was certainly a hazard to which men engaged in making up a train, in the night time, would not, or should not, ordinarily be exposed, viz.: that of having other cars moved on the same siding in such a way as to be liable to be thrown with violence against the rear of those with which they are engaged. We think it was for the jury to say whether a rule prohibiting such use of a siding, or providing for some signal or warning when such use is made of it, was anything more than a reasonable precaution for the safety of the men employed.

The rules of the defendant were introduced in evidence and are before us. There is no rule which covers or refers to the situation in question. The rule most nearly analagous to that suggested, is one which prescribes the exhibition of a red light bjr night or a red flag by day upon a crippled or disabled car, to indicate that it is not to be moved or collided with. One reason given for this rule is that men engaged in repairing such a car may be under or about it in such a position as to be helpless to save themselves if the car were moved. We think the analogy is close enough to suggest the propriety of a similar rule for the case in hand. Indeed, the cases are so far similar that counsel for the defendant are disposed to argue that the deceased was negligent of his own safety in not applying the existing rule to the actual case, and protecting himself by displaying a red light on the end of his caboose. But it is very clear that he was not at liberty, even if he had been aware of the danger which threatened him, to make such use of the signal mentioned. The rule is specific and confines itself to the case of a disabled car set aside. for repairs.

Another ground for the charge of contributory negligence was more nearly tenable. A rule of the defendant requires bralcemen to supply themselves with coupling sticks and to use them in all cases of single coupling, viz.: by link and pin. The office of that implement seems to be, in effect, to add to the length of the brakeman’s arm, and enable him to reach the coupling from a standing place alongside the car, and raise or lower the free end of the link so that it may enter the draw head, and to cause the pin .to drop into its place, without going between the cars as they approach each other. In this case the evidence shows that the deceased did not have a coupling stick with him, although there were some in the caboose. And the court charged the jury, in effect, that if the accident resulted from the attempt to make the coupling without the use of the stick, there could be no recovery in the action. We think the evidence on this branch of the case justified the submission of that question to the jury.

There was evidence tending to show that when the deceased set about making the coupling he discovered that the link was missing, and that the two drawheads or bumpers of the two cars were in contact with each other; that this made it necessary to separate the cars far enough to insert a link; that, there being no engine attached, he proceeded by means of a “pinch-bar,” or lever, applied to the wheels of the caboose, to move that car back the requisite distance, and having procured a link went between the two cars to insert it into one of the bumpers; that this could have been done in no other way; that the stick would have been of no use for that purpose, and that it was while he was necessarily between the cars to put the link in place that the collision occurred and the injury was received. The evidence was such as fully to warrant a finding of these facts, and being found, they clearly negative the last mentioned theory of negligence on the part of the deceased. We think that both the questions of negligence on the part of the defendant and on the part of the deceased were properly submitted to the jury, and that the verdict must be conclusive on both.

We find no other question in the case which seems to require discussion and are of opinion that the judgment and order appealed from should be affirmed.

Macomber and Corlett, JJ., concur.  