
    (87 Hun, 538.)
    O’LOUGHLIN v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. Injury to Employe—Incompetency op Fellow Servant.
    Where the duties of one of two switchmen in a railroad yard in which were twenty switches, and nearly as many tracks, were imposed on the conductor of the switch engine, in addition to his regular duties, and on the first day that he was charged with such additional duties he, by mistake, backed the engine on a different track from the one he had told the switchman he would come on, and injured the switchman who was standing thereon, it is a question for the jury whether he was incompetent, by reason of want of familiarity with the switches, though he testified that he was familiar with the switches and their operation, it appearing that he had, in. the first of his services, been engaged in coupling cars; that for the last 3% years he had been yard conductor; that his business as such did not require him to turn the switches'; that there was an apparent complication of the tracks-and of the switches, in their relation thereto; and that without knowledge of the tracks, in. their connection with and. relation to each other, and experience in the operation of the switches, one would be likely to make mistakes.
    8. Same—Contributory Negligence.
    Whether a- switchman who, while- standing on one track, near a switch, waiting for an engine to come down on the next track, was struck by the ■engine coming on the track on which he was standing, was guilty of contributory negligence, is a question for the jury; there having been no light on the end of the engine towards him, though it was night, and the conductor having told him that the engine would come on the next track.
    
      Appeal from circuit court, Monroe county.
    Action by John O’Loughlin against the New York Central & Hudson River Railroad Company for personal injuries received in defendant’s employ. From an order denying a motion made on the minutes for a new trial, after a verdict was rendered in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.
    Albert H. Harris, for appellant.
    Horace G. Pierce and John Van Voorhis, for respondent
   BRADLEY, J.

The plaintiff, having for 15 years been in the service of the defendant as flagman and switchman at and in the vicinity of Platt street, in its freight yard in the city of Rochester, was on February 8,1894, struck by the switch engine, and severely injured. He attributes his injury to the negligence of the,' defendant. In this yard were 20 switches, and nearly as many tracks. The business of switching and shifting cars there was large and continuous, ■night and day. For some time prior to the day of the accident .there were four switchmen in the yard. Two were engaged there during the day, and two during the night. On that day, with a view of reducing expenses, the plaintiff’s1 mate ■ was dismissed, the plaintiff was charged with the duty of taking care of the switches at and near Platt street, and the operation of the other switches was devolved upon the conductor and brakeman of the switch engine, called the “trainmen.” The course of Platt street is east and west. The railroad tracks cross it nearly at right angles. The number of tracks, being 7 at the crossing, was increased north of there to 16 or more! For convenience, the tracks at the crossing may be numbered from east to west The circumstances were that about 9 o’clock in the evening of that day, when the engine was near .the crossing, and about to proceed north, the conductor, said to the plaintiff that it was going to a track known as the “Horn” to get some cars; that it would come back, south, on. what was known as the “Inside Track,” which, on the crossing, was the fourth track from the west,—and directed the plaintiff,.on the return of the engine, to turn a certain switch. The engine proceeded north on the most westerly track, known as the “New House and Kent House Track,” taking the switches to the right until it reached the mam track (the fifth track from the west), at a distance of upwards of 200 feet north of the crossing, and then, on the signal of the conductor, the engine came south on the main track, and struck the plaintiff, who stood on that track at the crossing.

The return of the engine south upon the main track was without any object or purpose on the part of the conductor.. It was his mistake in giving the signal which brought the engine south upon that track, resulting in the injury to the plaintiff. His intention was that it should, by use of another switch north of'the crossing, pass onto the track next east of the main track, and thence south on the inside track. If this mistake was attributable to the negligence of the conductor, who was the coemployé of the plaintiff, the defendant is not liable. But if the conductor was incompetent —by reason of want of familiarity with the switches, in their relation to the various tracks—to perform the duties of switchman, a different question arises. In the first of his service he had, for a time, been engaged in coupling cars, but for the last three years and a half he had been engaged there as yard conductor. His business as such did not require him to turn the switches, and he did it only occasionally, when convenient for him to do so, in the course of his business as conductor. . There is an apparent complication of the tracks as they proceed north from the crossing, and of the switches in their relation to the tracks. It seems quite evident that without the knowledge of the tracks, in their connection with and relation to each other, and experience in the operation of the numerous switches,- a person would be liable to make some mistakes. The defendant was chargeable with knowledge of the skill requisite to perform that duty in the yard and was advised of the nature of the service the conductor had, up to that time, performed. It may also be observed that, as his service as conductor continued, his duties and responsibilities were increased by adding those of switchman. Although he testified that he was familiar with the switches and their operation, it was, in view of his relation to the defendant, fairly a question of fact for the jury, whether he had such familiarity with the switches, in their relation to the several tracks, as to render him a competent person to perform that service. And if they found that he was then incompetent for it, and that the plaintiff’s injury was the consequence of such incompetency, the conclusion was permitted that the defendant failed to supply adequate force to do the work in the yard as its duty to the plaintiff required, and therefore was chargeable with negligence. Flike v. Railroad Co., 53 N. Y. 550; Booth v. Railroad Co., 73 N. Y. 38. The conclusion was justified, upon the evidence, that the other members of the crew with the engine knew less about the switches than did the conductor. The switch engine usually employed in the yard, having a headlight on each end, had some time before been taken to the shop for repairs. The engine in use at the time of the accident was one without any headlight in the rear, and had been temporarily in use there for a week. The evidence on the part of the plaintiff is that on the night in question there was no light whatever on the rear end of the engine and tender, and such is here assumed to be the fact, although there was evidence on the part of the defense tending to prove that there was a red' light of a lamp at one corner of the rear end, on the tender. The front of the engine was north, and it was running backwards when the accident occurred. The question whether the engine was suitably equipped with lights for the night service was also submitted to the jury, upon the question of the defendant’s negligence, in view of its duty to use reasonable care in supplying adequate appliances for the safety of its employés.

The question whether the plaintiff was, by the evidence, relieved from the imputation of contributory negligence, is somewhat close. He testifies that he supposed that the engine was coming south on the inside track as he had been advised by the conductor it would; that, in the darkness, he could see that the engine was coming south, but could not see that it was on the main track,—and the inference is permitted that he was in a situation on that track to turn the switch, as he had been directed to have it done on the arrival of the engine at the proper place. The inside track and the main track, at the crossing, opposite where the plaintiff stood, were separated by only four feet and nine inches. It is evident that the plaintiff, not seeing that the engine was approaching on the main track, relied upon the statement of the conductor that it would be on the inside track, and therefore felt that he was safe where he stood. While the plaintiff may have avoided the possibility of danger by being upon no track, he had reasonable apprehension of no danger on the main track. He was not, under the circumstances, required to use the utmost caution, by seeing to it that the train, by the mistake of the conductor, was not switched onto the track intended. The failure to exercise the best judgment is not necessarily contributory negligence. In the determination of that question, allowance may properly be made for influences which may ordinarily govern the action of persons. The plaintiff’s action had support of his confidence in the purpose of the conductor, and in the faith that he could, and without mistake would, execute it. He was-, in effect, advised by him that he would be safé anywhere except on the inside track, and he was permitted to so understand it, and act accordingly, if he, by the exercise of reasonable care, failed to observe anything to the contrary. It may be, if there had been a light on the rear end of the tender, as it approached him, the plaintiff might have seen and avoided the danger to which he was exposed. We think, under the circumstances, the question of his contributory negligence was properly submitted to the jury; that there-was no error in the denial of the motion for a nonsuit, or in the refusal to direct a verdict for the defendant; and that the verdict is supported by the evidence.

The learned counsel for the defendant excepted to several refusals to charge as requested, and to some of the propositions submitted to the jury. In view of the charge as made by the court to the , we think neither of those exceptions was well taken.

íe order should be affirmed. All concur.  