
    Elizabeth F. Dunn, as Administratrix, etc., of Thomas Dunn, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    May 4, 1910.
    Railroad — negligence — rules — white light — rear-end collision—contributory negligence.
    The rule of a railroad that a white light on a semaphore at night indicates safety is not intended to protect a train passing a siding from colliding with the rear end of another train entering the siding from the opposite direction when the trains are aware of the presence of each other and it appears that the semaphore and telegraph office were situate half way up the siding.
    
      It seems, that the application of such rule is a question of law.
    Where in an action to recover for the death of plaintiff’s intestate, a railroad engineer, it appears that he expected to pass another train at a siding, that when half way past the siding’ the engine of the other train passed him, that the semaphore at this point showed a white light, that he put on more steam and struck the rear end of the through train just as it was going upon the siding and that there were lights both on the switch and the rear of the other train, no recovery can be had, as the deceased was guilty of contributory negligence.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of thy clerk of the county of Onondaga on the 8th day of February, 1909, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      A: S. Cowie, for the appellant.
    
      George MoGowan, for the respondent.
   Williams, J.:

The judgment and order should be reversed and’ a new trial granted, with costs to'the appellant to. abide event.

The action is for negligence. The accident occurred on a dark night on the West Shore division of the defendant’s road at a place known as the Seneca Biver siding, and resulted in the death of the plaintiff’s intestate, Thomas Dunn. The siding in question was about one mile along, and was capable of holding 113 cars; midway of the siding was a small telegraph station and on either side of it and 150 to 200 feet away was a semaphore, operated from the telegraph station. The rules provided that a white, light at night indicated safety but such signal should not be given until it was known the route was clear. Dunn was running a freight train east and his orders were to meet another freight train at this siding, he to keep the main track and the other train to take the siding. When Dunn approached the semaphore west of the station, the engine of the other train in the siding was nearly opposite him. His train was running without steam. The .semaphore showed a red light. Dunn blew, for the block or semaphore signal, and the operator changed the light to a white one. Thereupon Dunn put on steam and moved faster.' His train consisted of forty cars of coal. The other train had not gone entirely upon the siding when Dunn’s engine came to the east end thereof, and his engine struck the eighth car ahead of the caboose, and in the collision he was killed. He evidently discovered before the collision that the other train was in his way but too late to avoid striking it.

The trial court submitted two questions to the jury:

First.-Was the defendant, guilty of negligence in that a white light .signal was given to the deceased, indicating a clear traek ahead-, when the west-bound train had not fully left, the main track and passed upon the siding ?

Second. Was the deceased free from any negligence contributing to the accident ?

The jury answered both questions in the affirmative and rendered a general-verdict for the plaintiff.

There was controversy on the trial as to what the white light signal meant at this siding. Did it mean merely that there was no train going east ahead of Dunn’s train in the block, or did it also mean that the train that Dunn knew was passing west upon and along the siding had entirely cleared the main track ? The evidence showed that the operator did not use the signal for the latter purpose, but only for the former; that he so understood its meaning under the rule. If the signal was intended to protect a train going east from a train going west upon the siding, then clearly the defendant was guilty of negligence, because it permitted its operator to disregard the rule in this respect the same' as though no such rule existed.

At the close of the charge there were suggestions made as to what was meant by the first question submitted in this respect, and as I understand it, the conclusion reached was that the jury were to determine the meaning of the rule in the respect referred to. The defendant’s counsel requested the court to charge that the'rule-was not designed to protect an east-bound train from the rear end of a west-bound train going upon the siding; that it had no application to two trains which were at this station, and were known to each other to be th'ere. This request was .refused. The court charged on the request of defendant’s counsel that if the rule applied only to east-bound trains, and not to a west-bound one going upon the siding, there could be no recovery.

The jury must have found that the rule was applicable to such west-bound train. I think this conclusion was wrong; that the rule was never intended to protect a train.in the position of Dunn’s from the rear end of another train going upon the siding, when the trains were aware of the presence of each other. The telegraph operator was located a half mile from the east end of the siding. How could he tell when the rear of the train was clear of the main track ? Dunn knew the other train was passing upon and along the siding. He exchanged signals with such train. Knowing the train was there and that he could not safely pass the end of the siding until that train had entirely cleared the main track, he' could tell much better than the operator when the main track was clear of that train. He had only to run along slowly and keep his train under control until he discovered the real condition of things there. The Operator had no means of telling. These rules were not designed to protect trains which were aware of each other’s presence against each other. I think this question as to the rules was one of law for the court, hut if one of fact for the jury, its determination thereof was erroneous as a matter of law or was against the weight of the evidence.

I think also that Dunn was guilty of contributory negligence. ■ There were lights on the rear of the west-bound train and upon the switch that would have indicated whether the tracks were, clear or obstructed. If the night was so dark he could not see them, he should' have held his train until he could see them or learn what the condition, of things there was. The west-bound train was running along just beside his, and he should have proceeded cautiously until he saw the rear end of it pass him or knew it was clear of .the main, track. There is no justification for the claim that he might proceed blindly, relying upon the white light signal.

I do not think it necessary for us to consider or pass upon the question of assumed risk. Very likely that was a question for the jury, and its finding thereon should not be disturbed.

All concurred.

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