
    Jeannette E. Devoe, as Administratrix, etc., of William H. Devoe, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — injury to-a car inspector who, outside of his duty as such, assists in uncoupling cars and is crushed between them—effect of his disregard of a rule requiring him to station a man by the side of cars while he is between them—act of a fellow-sermnt.
    
    A car inspector in the employ of a railroad company who, while voluntarily engaged in assisting the conductor of a shifting engine and not in the course of his duties as car inspector, goes between two cars for the purpose of uncoupling them, assumes the risk incident thereto, and if he is killed in consequence of the shifting engine backing other cars against those which he is endeavoring to uncouple, the railroad company is not liable for the damages resulting from his death, especially where it appears that when he went between the cars he did not station a man by the side thereof as required by a rule promulgated by the railroad company for the protection of car inspectors and which had been communicated to the deceased.
    If the engineer of the shifting engine was negligent in pushing cars against those which the deceased was endeavoring to uncouple, it was the negligent act of a fellow servant of the deceased and not of the master.
    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 the clerk of the county of Onondaga on the 13tli day of April, 1901, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 16th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Leroy B. Williams, for the appellant.
    
      William B. Jenney, for the respondent.
   Davy, J.:

This action was brought to recover under the statute (Code Civ. Proc. .§ 1902), damages for the death of plaintiff’s intestate, alleged to have occurred through the negligence of the defendant.

The intestate had been in defendant’s service as car inspector at its passenger station in Syracuse for seven years prior to the accident, which occurred shortly after noon on July 19, 1899. While he was between two empty passenger cars, either in uncoupling or inspecting them, they were suddenly pushed together and his head was caught and crushed' between the cars, from which injury he died the following day.

The negligence of the defendant, it is alleged, was its failure to enjoin upon its car inspectors the use of blue lights and blue flags, for the purpose of protecting its- employees while at work in and about trains at passenger stations, instead of pursuing the system adopted and followed by the company at the station in Syracuse, which required a car inspector to protect himself, when making repairs to cars standing in the train-shed, by stationing a man opposite the-car which he was under.

It appears that in 1895 the defendant printed rules, one of which required a blue flag by day and a blue light by night, to be placed on the end of a car, engine or train while men were at work under or about them. This rule was not enforced by the car inspectors. Mr. Beatty, the foreman of the car department, testified that in 1893 the Company adopted and promulgated verbal rules, to the effect that inspectors should not, in the ordinary inspection, go between cars or under them ; and in case it became necessary to go between or under cars, they should station a man at or near the car to stand on guard for their protection. These rules were communicated by Beatty to the section master, the engineers, firemen, conductors, the entire train crew and the men working around the trains, who were instructed that they must not, under any circumstances, go under or between the cars, whether there was an engine attached or not, without protecting themselves by having a man stand on guard. He repeated these orders frequently to the deceased and other employees of the defendant. This system of inspecting cars-had been adopted and pursued at the. Syracuse station for a number of years, and had been universally followed by the inspectors. Mr. Beatty said he had occasionally used the blue flag and blue light, but he found them comparatively useless, as they did not afford sufficient protection to the employees.; that, under his plan, the inspectors were as safe as it is possible to make them, and more safe than they could be under the blue light and blue flag system. The reasons he gave for placing a man. on guard were, that inspectors under cars are out of sight of a blue light or flag, and would not know how long the signal would remain on the car after they began work; a new trainman or an outsider might take the signal down; the light might blow out or the flag be removed; a car being run in on the track might go too far owing to a failure of the brakes to respond promptly; an engine backing up to connect with the train might fail to stop in time; a train entering a station might be going too fast to stop; a misplaced switch might throw a train or car into the cars that were being inspected or repaired. Under these circumstances, a man on guard, while he might not be able to prevent a collision of the cars, could warn the repairmen and have them out from under the cars in time to avoid any accident, and he could also give signals to the approaching engine or train to stop. It is evident that Mr. Beatty’s long experience in conducting inspection and repairs entitles his testimony to great weight," especially when it appears that, during his long term of office at the Syracuse station, he never knew of a train being moved when workmen were under it, when the instructions as to protecting workmen were complied with, and that the accident to the deceased was the first accident received by any of his inspectors during the ten years that he had been in charge of this station, where from fifty to sixty passenger trains are inspected daily.

It appears that shortly before the accident, train No. 10 came in from the north on the Rome, Watertown and Ogdensburg track which joins the northerly tracks known as Nos. 7 and 6 in the New York Central station by a “ Y” and' a switch. The time of the arrival was about twelve o’clock noon. The engine on No. 10 went west on track 6 to the engine house, leaving six or seven cars composing train No. 10 standing on track 6. When train No. 4 came in, it stopped on track 6 just west of the switch, and its engine also went west on track 6 to the engine house.

The deceased was between the two easterly cars of train No. 4, when the shifting engine backed train No. 10 against it, and the deceased was caught between the two cars. No one saw just how the accident occurred. Hugh Crocker, a car cleaner at the New York Central station in Syracuse, was working inside of a car at the time, and was the last man to converse with the deceased before he went between the cars. He says that he first saw the deceased at the end of- the smoker, which was the first passenger car east of the baggage car on train 4, and at that time Crocker was on the platform and the deceased was on the ground. , Crocker asked him to come into the coach, and he said no, he would go down and uncouple the cars and help Sweeney, who was the conductor of the shifting engine, and who was handling these cars at the time of the accident. Crocker says that the deceased laid his hammer on the platform when he went between the cars.

A witness by the name of Peck, who was a trainman on the Auburn road, and who was standing beside his train on the south' track opposite the scene of the accident, saw the deceased comedown from the platform of one of the cars just before the accident and go between the cars. Immediately after the acccident, it was-discovered that the safety chains were uncoupled and the air cock was turned off, and there is no evidence that this was done by any of the other employees. ■

. The inference to be drawn from all the testimony and the sur-' rounding circumstances is, that the deceased went between the cars for the purpose of uncoupling them. This fact seems to be so clearly established that no construction of the facts as drawn from-the evidence would- warrant a different conclusion.

There was no excuse for the conduct of the deceased in exposing himself to danger. The notice to him-not to go between or under the cars under any circumstances, unless a man was stationed by the-side of the car, and -the continuance of the deceased in the service of the company, with the knowledge of such a rule, made its terms; a part of the contract of employment, so that it was a breach of duty on his part to go between the cars, either to inspect or to-uncouple them.

There were no defects in the brakes or about the cars, and there-was no occasion for him, as inspector, to go. between them. The rule is well settled that where an employee, at the time of receiving an injury, is in the performance of duties outside of his regular employment, he will be held to have assumed the risk incident to those duties and- cannot recover. (LaCroy v. N. Y., L. E. & W. R. R. Co., 132 N. Y. 570; Sutherland v. Troy & Boston Railroad Co., 125 id. 737.)

It is an elementary principle of law that, between master and servant, the servant who undertakes the performance of hazardous duties assumes the ordinary risks incident to the business.

It is undoubtedly the duty of the employer to provide the employees with a safe working place and with safe machinery and appliances. The employer is not bound, however, to exercise the highest degree of skill and care in discharging this duty, but is only required to exercise ordinary care and skill. This duty is one which the law imposes upon the master, and it is one which cannot be delegated so as to relieve him from responsibility. The agent to whom it is intrusted, whatever his rank may be, acts as the master in discharging it. There are likewise duties resting upon the employee as well as upon the employer. The law imposes obligations upon one as well as upon the other. One of the obligations imposed upon the employee is that he shall assume the risks and dangers which are known to him, incident to the employment, or which, by the exercise of reasonable care, he might have known. No employee is obliged to remain in the service of a railroad company when he knows that the service is dangerous, but if he does remain, he assumes all the risks arising from the known danger.

There is another familiar rule, and that is that when an employee enters into or remains in the service of a railroad company, having knowledge of its rules and regulations, he must be held as undertaking to acquiesce therein, and if he is afterwards injured by reason of his violation of such rules and regulations he cannot claim damages, because they were unreasonable. (LaCroy v. N. Y., L. E. & W. R. R. Co. supra ; Byrnes v. N. Y., L. E. & W. R. R. Co., 113 N. Y. 251.)

The deceased, when he entered the employment of the defendant, was informed of the rules which he and other car inspectors were to follow. At the time of the accident he had been in the employ of the company as car inspector and had worked under these rules for a number of years; he had witnessed the mode of switching and coupling cars at the station almost daily, and knew the risks incident to that kind of business. He knew that it was dangerous to go between the cars for any purpose, either to inspect or to couple them, for the reason that cars were being moved continuously from one track to another, and pushed against each other ; the danger was as apparent to him. as it was to the defendant, and to every ordinary workman about the station. . The danger was not of such a character as to require a skilled mechanic or an expert to detect it.

If the engineer was negligent in pushing the engine against the -cars that the deceased was between, it was the negligent act of a Tellów-servant of the deceased,' and not of the master. (Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582.)

It was held in Haskin v. N. Y. Central & H. R. R. R. Co. (65 Barb. 134) that, where one enters into the employ of a railroad company, with full knowledge that no .provision has been made for protecting its servants against injury from moving trains or engines, he has no claim to recover damages if he sustains an injury.

Railroad companies must be permitted, in order to protect passengers and employees, to make such reasonable rules as they think best. In this case the defendant had made and promulgated rules for the protection of the car inspectors at the Syracuse station, and these rules at the time of the accident were actually in force which rendered any other rules unnecessary. (Corcoran v. Del., Lack. & W. R. R. Co., 126 N. Y. 673; Kudik v. Lehigh Valley R. R. Co., 78 Hun, 492; Davis v. S. I. R. T. R. Co., 1 App. Div. 178.)

The evidence shows that the cars and couplings where the deceased was injured were not out. of repair, arid that there was no occasion for his going between them. He well knew that his duty to the defendant and a proper regard for his own safety required him to obey the rules. Had he obeyed them, or exercised that reasonable care and caution which the situation demanded, he would have avoided the accident. Had he exercised the same degree of care that is demanded of a traveler upon the highway in approaching a railroad crossing he would not have been injured. If he had looked he would have seen Sweeney, the conductor, who was only fifteen feet from him, and he would also have seen the train backing down. (Albert v. N. Y. Central & H. R. R. R. Co., 80 Hun, 152.)

It seems to us that the evidence fails to establish negligence on the part of the defendant, but the contributory negligence of the deceased was clearly established as a matter of law, and the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

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

McLennan, Spring, Williams and Hiscock, JJ., concurred.

Judgment and order reversed upon questions of law only, the facts having been examined and no error found therein, and new trial ordered, with costs to the appellant to abide the event.  