
    Mary Clark, as Administratrix, etc., of James Clark, Deceased, Respondent, v. Manhattan Railway Company, Appellant.
    
      Negligence — death of a track repairer engaged with his head down between the ties of an elevated railroad driving bolts —proof as to the continued violation by the engineers of a rule for the track repairer's protection — when not sufficient to establish direct or constructive notice to the company — duty to station a man near by to warn him.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, who was a track repairer employed by the defendant, an elevated railroad company, it appeared that at the time of the accident the deceased was engaged, with his head down between the ties, driving bolts into a guard rail, and that while in this position he was struck and killed by an elevated train. Evidence was given tending to show that a green flag had been posted for the protection of the intestate and that a rule of the defendant required engineers to slow up their trains when approaching a green flag. The case was submitted to the jury upon the theory that liability on the part of the defendant could only be predicated upon the persistent and continued violation by the engineers of the rule requiring observance of the green flag.
    The only evidence bearing upon this subject was given by a co-employee of the deceased, who was not vested with any authority in regulating or controlling the actions of other servants of the defendant. He testified as follows: “Q. When this green flag was set what would happen, so far as any of the trains-were concerned, with regard to obeying this flag? * * * A. I don’t understand. Q. Would the speed of the trains decrease any? A. They didn’t seem to mind the flag at all. Q. Didn’t mind the flag at all? A. Hot that flag. Q. Was that an every-day occurrence previous to this accident? * * * A. Yes; every day.”
    
      Held, that, assuming that this testimony simply established a failure on the part of the engineers operating trains on the day of the accident to observe the green flag posted for the intestate’s protection, such evidence would not warrant a finding that the defendant was negligent in failing to correct a habitual neglect of rules by its servants;
    That, assuming that the testimony of the witness applied to all cases in which green flags were displayed and showed that they were habitually disregarded, it was insufficient to establish negligence on the part of the defendant, as it did not show that direct notice of the failure to observe the rule in question had been given to any officer or representative of the company having authority in the premises or that the disregard of such rule had continued for a length of time sufficient to charge the defendant with constructive notice thereof.
    
      Qvare, whether the defendant was guilty of negligence in failing to station a workman near the deceased to inform him of approaching trains.
    Appeal by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st •day of March, 1902, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 27th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederic A. Ward, for the appellant.
    
      Edwa/rd J. McCrossin, for the respondent.
   Hatch, J.:

This action was brought to recover damages for claimed negligent conduct upon the part of the defendant, resulting in the death of the plaintiff’s intestate.

It appeared upon the trial that the deceased was an employee of the defendant, and upon the 26th day of November, 1901, was engaged as a track repairer, repairing tracks upon the defendant’s structure between Fifty-first and Fifty-second streets.

The work in its performance required the deceased to lean over the rails with his head down between the ties and drive up bolts into a guard rail, which was bolted down from the top. While in this position an elevated train running at a high rate of speed struck the deceased and inflicted injuries from which he died.

The theory of the complaint charges the defendant with negligence in failing to provide proper rules and regulations relative to the operation of trains over that part of the structure whereon its employees were working, and in omitting to warn the deceased of the approach of the oncoming train, and for failure to provide any flag, signals or warning to notify the engineer upon the train of the presence of workmen. Upon the trial proof was given upon the part of the plaintiff tending to establish that no flag had been provided to warn the engineers operating the trains of the presence of workmen upon the track, and that in the course of the employment it was customary when an employee was engaged in the performance of the work which the deceased was then doing to station another person near him to give warning of approaching trains; that in the present case the foreman of the gang in which the deceased was employed stood by the deceased when he commenced to work, but left Mm in such position before he had finished and went to another point upon the road, a considerable distance to the north, and that at the time when the injuries were inflicted there was nobody sufficiently near to the deceased to give him warning of the approaching train. Some further testimony was given tending to show that the engineers in the operation of their trains habitually disregarded the flags which were placed to warn them of the presence of workmen upon the track. The effect of this testimony will be hereafter noticed.

Upon the part of the defendant, the proof tended to establish that it had formulated and promulgated rules sufficient in themselves, if properly observed, to protect the workmen from danger while so employed, and of such rules the gang with which the deceased worked was informed; that sufficient flags and other implements to give warning were also furnished. Proof was also given tending to show that upon the day in question a green flag was put up at a proper place when the gang began to work, and remained up at the time of the happening of the accident. The rules required that- engineers in the operation of trains should come to a full stop when a red flag was exposed and slow up when a green flag was exposed; that it was usual for the protection of the workmen to put up a green flag. The foreman testified that he went with the deceased to the place where he was killed and remained with him for some time, when, his duties calling him elsewhere, he informed the deceased that he was going to leave and that he would have to look out for himself. This was a short time prior to the happening of the accident.

The case was submitted to the jury upon the theory that liability of the defendant could only be based upon a persistent and continued violation of the rules which required observance by the engineers engaged in operating trains of the green flags. The court held that proper rules had been formulated and promulgated and that liability could not be predicated against the defendant for negligence in this regard. Such was the rule announced by the court in denying a motion for a nonsuit, and was several times reiterated in the court’s charge to the jury. The case came to rest, therefore, solely and exclusively upon the fact that the jury might predicate negligence of the defendant, based upon a lack of proper care in seeing that the system of rules which it had formulated and promulgated were properly observed by the agents and servants of the company. The case must, therefore, be supported upon this theory of negligence, or not all. The only evidence in the case bearing upon this subject is found in the statement of the witness Cosgrove, developed as follows: Q. When this green flag was set what would happen, so far as any of the trains were concerned, with regard to obeying this flag ? [Defendant’s counsel objected to the question as incompetent and immaterial. The court overruled the objection and defendant’s counsel duly excepted.] A. I don’t understand. Q. Would the speed of the trains decrease any? A. They didn’t seem to mind the flag at all. Q. Didn’t mind the flag at all ? A. Not that flag. Q. Was that an every-day occurrence previous to this accident ? [Objected to by defendant’s counsel as incompetent.] The Court: I suppose these gentlemen are going to claim that this man had a right to rely upon some warning. Mr. Towns: Yes, and show also that if they had had any rules they never were observed. [The court overruled the objection and defendant’s counsel duly excepted.] A. Yes; everyday.”

The effect of this testimony is somewhat obscure, as the first statement of the witness is that the engineers in the operation of the trains did not mind that flag. If by this answer the witness is to be understood as applying failure to observe the flag to the engineers operating trains on the day of the accident and limited to the flag then in position, it is clearly insufficient, as no liability could by any possibility attach to the defendant for the negligence of its servants in failing to obey this particular flag at the particular time. A single instance of neglect, or the neglect to observe the flag for a day, would be insufficient upon which to predicate negligence for failure to correct a habitual neglect of rules by its servants, even though it had direct notice of such fact.

Assuming, however, that the testimony of the witness is to be construed as applying generally to all cases when green flags were displayed, and that they were habitually disregarded, we think the proof is insufficient upon which to base a charge of negligence. The witness was a co-employee of the deceased of the same grade, and was not vested with any authority in regulating or controlling the actions of other servants of the defendant. Consequently, notice to him would not be notice to the company. The proof is entirely silent as to the length of time during which this flag had been disregarded. The disregard of it for a month or a day would be entirely consistent with the statement of the witness, and it does not appear under what circumstances it was done, or whether by particular engineers, or by all. The statement is extremely general in character, and is not sufficient from which it can be seen, or from which an inference can be raised, that the defendant was required to take action thereon. It is not established by this evidence nor was it otherwise claimed that notice of the failure to observe this rule was" given to any officer or representative of the company having authority to discharge or regulate the conduct of its servants and employees in respect thereto. As no direct notice was given to any such officer or representative, the case must be brought within the rule authorizing the jury to find constructive notice to the defendant of the habitual disregard of the rule. Upon this subject, the proof entirely fails, as length of time during which the flag had not been observed cannot be determined from anything appearing in the proofs in the case. In Cameron v. N. Y. C. & H. R. R. R. Co. (145 N. Y. 400) it appeared that the servant charged with neglect had for a period of four months prior to the accident been accustomed to habitually violate the defendant’s rules by leaving a switch open and unguarded, and it was held in that case that it was insufficient to charge constructive notice upon the master. It is there said: “ There is no arbitrary rule of law that charges the master with constructive notice of the negligent omissions of duty on the part of a co-servant, after the lapse of a certain time, under all circumstances. The doctrine of constructive notice is founded upon reasonable and just considerations, and the mere lapse of time is not always the test of negligence on the part of the master.”

It is evident that, under the doctrine of that case, the jury were not authorized to find that the defendant had constructive notice of the neglect of its employees in the present case. There is an utter absence of anything in this case showing, or tending to show, that prior to the time of the accident the officers or representatives of the road had knowledge of the neglect of its servants in this particular. There was no direct notice of the existence of any physi•cal condition of which the defendant ought to have taken notice, or of any other circumstances which, in the discharge of its duty, would or should have called it to its attention. It does not appear that any other accidents of this character had ever happened from this cause, or that there existed any other circumstances from which it could be inferred that the officers and representatives ought, in the proper discharge of their duty, to have discovered it and, therefore, have taken notice. The evidence was utterly insufficient for the court to submit, or the jury to find, negligence based upon the theory upon which the case was submitted to them.

It is said that the defendant was guilty of negligence in failing to station a workman near the deceased to inform him of approaching trains. It is quite clear from the testimony that great care was required to be exercised by the defendant for the protection of the •deceased. His employment was one of extreme danger from oncoming trains. To perform the service required of him caused him to •occupy such a position as rendered it practically impossible for him to inform himself of the approach of a train, and under such circumstances the defendant was charged with extreme care to see that he was properly protected. It may be that negligence could be predicated of the failure of the defendant to station a person near him to give warning during the time he was so employed, and that the foreman was guilty of an act of negligence in not remaining near him during the entire time he was so engaged, and, if called upon to leave, in not procuring some other person to take his place. The difficulty, however, with this contention is that the defendant has not been heard by the jury upon such question: The court ■eliminated all such considerations from the case, and presumably they were not discussed by counsel; therefore, this question has not been considered by them. When the court ruled that the jury -could only find negligence based upon one consideration, it necessarily eliminated all others, and the plaintiff, under such circumstances, cannot be heard to urge that the judgment be sustained, based upon other matters which have never been submitted to the jury and upon which the defendant has not been heard.

It follows that the evidence was insufficient to support a recovery upon the theory upon which the case was submitted to the jury. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. j., O’Brien, Ingraham and McLaughlin, JJ.,. concurred.

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