
    Rebecca Sutherland, as Adm’rx, etc., App’lt, v. The Troy and Boston Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1887.)
    
    Negligence—Railroad—When question eor jury.
    In an action brought to recover damages for the death of the plaintiff's intestate alleged to have been caused by the negligence of defendant, it appeared that the defendant’s station agent was directed by the defendant’s train despatcher, to hold the train, of which intestate was engineer until further orders. Subsequently said station agent received a dispatch directing a certain other train to pass intestate’s train (which had not then arrived), at another place. The said station agent thinking this last dispatch was the “further orders referred to in the first-mentioned order,” failed to hold intestate’s train and as a consequence it came in collision with a third train and intestate was killed in said collision. Held, that it was a question for the jury whether the methods adopted by the defendant were ample and explicit enough to bring, without the likelihood of mistake or miscarriage, the requisite notice to the servants most concerned, of the orders upon which their safety depended.
    Appeal from a judgment of non-suit at the Rensselaer county circuit.
    The action was to recover damages under the statute for the pecuniary loss to the widow and next of kin, sustained by the death of the plaintiff’s intestate, who was killed as was alleged in consequence of the negligence of the defendant.
    Mark Sutherland, the plaintiff’s intestate, was a locomotive engineer in the employment of the defendant. On the morning of August 1, 1883, he was engineer upon a locomotive drawing a freight train known as No. 1, from Troy eastwardly over the single track road of the defendant. This train was due at Petersburgh Junction at 6:26 in the morning. It was late in leaving Troy and lost time after leaving, so that in fact it did not pass Petersburgh Junction until 8:30.
    The trains were moved in accordance with telegraphic dispatches from the train dispatcher’s office at Troy to the different operators on the line of the road. Johnson, the telegraphic operator at Petersburg Junction, received a dispatch at about half past six from the train dispatcher at Troy, requesting him not to go to breakfast as usual, but wait for orders. At 6:55 the train dispatcher telegraphed him to “ flag and hold train 1 for orders.” As soon as the telegram was received and verified, the operator put out a red flag.
    At this time train No. 2, moving west, received orders to meet train No. 1 at Petersburgh Junction. Train 2 reached Petersburgh junction at 7:19, and was held there. Then Johnson inquired of the train-despatcher “if he could help train 2,” and received a dispatch for train 2 to meet train 1 at Hoosick, a station west of Petersburgh Junction. Johnson wrote out the dispatch in triplicate, according to the usual custom rule, and gave a copy to each the conductor and engineer of train 2 in presence of each other, took in his red flag and filed his copy of the dispatch. Train 2 then moved on west and met train 1 at Hoosick. Johnson supposed that holding train 1 for orders was holding it only for orders with respect to train 2, and when train 1 received orders in regard to passing train 2 he supposed the order to him was fulfilled, and for that reason did not again put out his red flag. He had frequently before received orders in respect to trains 1 and 2 meeting, but never before had he had any orders to hold 1 for train 6. Train 1 reached Petersburgh Junction at about 8:30, and there being no red flag out, passed without stopping. Meantime train 6 left Vermont coming east, and the two trains came into •collision, whereby the plaintiff’s intestate was killed.
    Johnson was seventeen years of age, and was in the joint employment of the defendant, the Lebanon Springs Railroad, and the station agent. He worked nights as station agent and telegraph operator from 6:20 in the evening until 8:30 in the morning.
    Upon the conclusion of the plaintiff’s evidence a motion for a non-suit was made, and the court granted the motion upon the grounds that Johnson was a co-employee of Sutherland; that there was no evidence of his incompetency and no notice to the defendant of incompetency upon his part.
    The plaintiff excepted to this ruling and asked to go to the jury upon the question of the negligence of the defendant in not taking all proper steps to avoid the accident.
    
      Charles E. Patterson, for app’lt; E. L. Fursman, for resp’t.
   Landon, J.

—The cases of Sheehan v. N. Y. C. and H. R. R. R. Co. (91 N. Y., 332), and Dana v. Same Defendant (92 id., 639), seem to require that this case should have been left to the jury to determine whether the defendant was guilty of any omission of duty in not taking additional precautions to bring the knowledge of its order to the conductor and engineer of train No. 1.

Train number one, of which the plaintiff’s intestate was engineer, was moving east behind time and ought to have been stopped and held at the Petersburgh Junction station until number six, which was moving west, should have met and passed it there. The men in charge of train one did not know that train six was coming towards it on the same track. But the defendant, by its train dispatcher at Troy, did know the situation and the danger, and in order to avert it telegraphed to Johnson, the telegraph operator and acting station agent at Petersburgh Junction, to “flag and hold train one for orders.” This dispatch was received and acknowledged by the operator, and he entered upon the execution of it. He put out the red flag in its proper place as a signal. It was sufficient to stop train one if the operator had allowed the flag to remain there until train one came up to the station. But before train one came up from the west train two came up to the station from the east and stopped there. To the understanding of Johnson it stopped there in order to await the arrival and passing of train one. But while waiting there train two received orders from Troy to move westward to Hoosick and meet train one there. It moved westward and met train one at Hoosick. To the understanding of Johnson, at Peters-burgh Junction, there was no longer any need that train one should stop at his station; the purpose for which train one should stop at Petersburgh was accomplished by the train dispatcher when he gave orders for train two to meet train one at Hoosick. Johnson did not know that train six was coming westward from Vermont towards his station. He therefore took down the red flag and train one passed at Petersburgh Junction without warning and without stopping and crashed into train six a mile or two beyond. Was Johnson careless in his execution of the order to “flag and hold train one for orders ” ? We may concede it. He had no right to interpret the order as if it read “hold train one for train two,” but it may also be conceded that his misinterpretation was, under the circumstances, just that kind of a mistake which a very slight degree of negligence might oause. We can also see that a little additional caution on the part of the train dispatcher might have prevented the accident. Had the dispatcher sent an order to the conductor or engineer of train one to stop at Petersburgh Junction for orders, or for train six, then other minds and other agencies would have been set at work to avert the collision. Such a dispatch might have been sent to Hoosick; or if sent, directed to the conductor and engineer of train one to Johnson at Petersburgh Junction it might have sufficed.

We do not say as a matter of law that it was under the circumstances the duty of the defendant, if practicable, to send the order to the men in charge of. train 1, as well as to Johnson, but that it was proper to submit the question as one of fact to the jury, whether this added precaution against mistake or neglect ought not to have been taken. In Sheehan's and Dana's Cases, the operator at the station at Cayuga received from the train dispatcher the order, “Hold No. 50 for orders.” No dispatch was sent to No. 50 itself. The operator very probably misled by the fact that he knew train 61 was about to arrive at the station from a direction opposite to that in which- train 50 was moving, told the conductor of 50 to hold his train for 61. The conductor did so and when 61 had passed he moved train 50 forward and it collided with train 337. There the operator was guilty of the negligence, not reasonably chargeable to Johnson in this case, of not showing his dispatch to the conductor as he had an opportunity to do.

The court in those cases held that whether the company had failed in its duty by not taking additional precautions to secure obedience to its order, “to hold 50 for orders,” was a question for the jury. It pointed out the distinction between those cases and the case of Slater v. Jewett (85 N. Y., 61). In the latter case the defendant had taken all the precautions to secure obedience to his order that were practicable. He had provided rules, minute, explicit and efficient, and made them known to his servants, which if observed and followed by all concerned would bring personal notice to every one entitled to it. But one servant so violated the rules as to prevent the others from obtaining the notice which was necessary to avert disaster. In the Sheehan and Dana Cases, and as we think in this case, it was a question of fact whether the methods adopted by the defendant were ample and explicit enough to bring, without the likelihood of mistake or miscarriage, the requisite notice to the servants most concerned, of the orders upon which their safety depended.

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

Learned, P. J., and Williams, J., concur.  