
    John G. Kelly, as Administrator, etc., of John H. Kelly, Deceased, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
    Third Department,
    March 13, 1907.
    Negligence — explosion of dynamite carried on railroad — master liable . for negligence although negligence of fellow-servant contributes to injury. "
    When an injury to a. servant is caused partly by. the negligence of a fellow-servant and partly by that of the master, the negligence of the fellow-servant does not excuse the master.
    When it appears that the plaintiff, a brakeman, was injured by an explosion of dynamite resulting- from a rear end collision, and that the car in which the dynamise was stored was next to the caboose of the forward train and was not provided with air brakes, as were the majority of the .other cars, contrary to the rule of the railroad requiring that cars carrying explosives he first class in every respect and that they he placed as near the middle of the train as possible, the jury would he entitled to fiml that the master, by storing- the dynamite in a car not equipped with air brakes, made it impossible for the decedent’s fellow-servants to place the car in the middle of the train, anda ' nonsuit based on the ground that the injury was caused by the act-of a fellow-servant is error.
    CochrAne, J., dissented, with opinion.
    Appeal by the plaintiff, John G. Kelly, as administrator, etc., from a judgment of the Supreme Court in favor of the .defendant,' entered in the office of the clerk of the county of Chemung on the 12th day of September, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, upon a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 12th day of September, 1906, denying- the plaintiff’s motion for a new trial made upon the minutes.
    The action is pne for damages for the death of plaintiff’s intestate caused by the alleged negligence of the defendant. The deceased was the head brakeman on a “ wild cat ” train operated by the defendant. It was running west bound and following i*egular train . 3STo. 61 and whs supposed to run about twenty minutes later than 61, which was a freight train made up at Scranton to run to Buffalo. On its way west train 61 stopped at Vestal station for water. This took ten or twelve minutes. Just as it got in motion again the “ wild cat ” train run into it in the rear while running at a speed of from, twenty to twenty-live miles an hour and the compact between the two trains caused the explosion of 24,000 pounds of dynamite which ivas contained in the car situate next in front of the caboose in the rear of train 61. The intestate was killed by such explosion.
    The defendant had promulgated rviles for the transportation of. high explosives, which provided that cars for carrying such explosives “must be first-class in every respect ” and “ must be placed in their, train as near the middle as possible.” When train 61 Avas made up at Scranton it consisted of thirty-five cars, about twenty-five of which were equipped with air brakes and Avere placed in the train ahead of ten other cars Avhich were not equipped with air ■brakes. The car loaded Avith dynamite was among the ten not so equipped and was placed third from the rear, there being another car between it and the caboose Avhich ivas to be taken off the train at Binghamton. The train Avas made up at Scranton under the direction of the assistant trainmaster there. When it reached Binghamton it Avas disconnected at the junction of the air and the non-air cars and seven or eight cars Avere taken off on the head end of the train besides the one car at the rear end between the car of dynamite and the caboose, and about tAventy-five cars were taken on, so that the train Avhen it left Binghamton ivas composed of over fifty cars in Avhich the car of dynamite was next to the caboose. It does not clearly appear in the evidence how the cars so taken on Avere equipped, but one Avitness stated that they were mostly air cars and were put on the head end of the train.- The changes at Binghamton and the making up of the train there Avere under the direction of the conductor of train 61 aided by his creAV. The train thus made up then proceeded to Vestal Avhere the collision took place as before stated. There Avere tAvo engines drawing the “ wild cat ” train, both at the' head of the train, and deceased was riding in the cab on the left-hand side of the second engine.
    Both engines Avere bloivn to pieces by the force of the explosion and several lives Avere lost. The accident happened before the passage of the Employers’ Liability Act (Laws of 1902, chap. 600).
    
      
      H. H. Rockwell, for the appellant.
    
      Halsey Sayles, for the respondent
   Chester J.:

While it is not-so stated in the record it is evident that the decision of the trial justice in dismissing the complaint was placed outlie ground that the accident was caused solely by the negligence of a coemployee. The respondent claims this, and the appellant concedes that the evidence shows that the collision was caused either by the negligence of the engineer of the leading engine on- the “ wild cat ” train in- not seeing the train on the track in front of -him or by the negligence of the crew of the train 61 in failing to send back a flagman the proper distance to warn the approaching “ wild eat ” train. Nevertheless it is apparent to us that if the case had been -submitted to the jury it could have found that the explosion which killed the decedent was caused partly by the negligence of a coemployee and partly by7 the negligence of the master. If the facts should be so established the plaintiff would be entitled to recover under the rule of law that where an injury to an employee is caused partly by the negligence of another employee and partly by that of the master the negligence of the coservant will not excuse the defendant from the- consequences -of its own fault. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 516; Strauss v. N. Y., N. H. & W. R. R. Co., 91 App. Div. 583)

The car in which the dynamite was loaded was furnished -by the master. It-was not a car equipped with air brakes, lia a train composed of over fifty7 cars, only nine" or ten of which were not so equipped, and the remainder of which- were so equipped, it is manifest that the" car of dynamite could not have been placed "in the middle of" the train, in - compliance with- defendant’s rule, without having a large part of the rear portion of the-train disconnected-ffonr the locomotive -in such a way that the air brakes upon such part could not have been utilized in controlling the train. The jury-could have found that the master, by providing this car for the transportation of dynamite, had put it beyond the power of its employees to comply -with its rule with respect to the - transportation of high explosives.

We think, therefore, that it was- for the jury to say as- matter of fact wlietlier the defendant used reasonable care in furnishing this car for the transportation, of this large quantity of dynamite, and Avhether it was a proper one for that purpose under the circumstances, and one which its employees could have placed in the train where its rule required. The case appears to be brought squarely within the rule laid down in Bernardi v. N. Y. C. & H. R. R. R. Co. (78 Hun, 454). There, as here, the appeal was from a judgment of dismissal of the complaint and the injury caused by the explosion of dynamite being transported on one of the defendant’s cars, and the court said: “ It was the duty of this defendant to exercise due care to provide proper cars and means for transporting this powerful explosive over its road, and it cannot escape liability for damages caused by the failure to exercise such care by delegating its, the master’s, duties to an employee of inferior grade who happened to be a co-laborer with the person injured.” It was a question there as to whether the explosion was caused by sparks from the locomotive coming in contact with dynamite being transported on a flat car, and the court said that.the jury might have found i: that the explosion was caused by the sparks from the locomotive, and they might have found that the defendant did not exercise due care to furnish safe means for the transportation of this explosive; * * • * and if it shall be found as a fact that the car used was unsafe and unfit for the transportation of this explosive, and that the defendant negligently permitted it to he used for that purpose, the plaintiff will be entitled to a verdict.”

We think on the authority of that case there was a question - for the jury, and that there should he a new trial.

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

All concurred, except Barker, P. J., not voting, not being a member of this court at the time this decision was handed down, and Cochrane, J., who dissented in an opinion.

Cochrane, J. (dissenting):

The reversal is based on the authority of Bernardi v. N. Y. C. & H. R. R. Co. (78 Hun, 454). In that case the explosive was conveyed on a flat car so near to the locomotive as not to be protected from the sparks therefrom, and it was held that it was a question for the jury whether the defendant exercised due care to furnish safe means for the transportation of this explosive. Assuming in the case before us that the car on which the dynamite was being transported did not comply with the defendant’s rule that it should be “first-class in every respect” for the reason that it was not equipped with air brakes, nevertheless such rule was supplemented with another rule that cars for carrying such explosives “ must be placed in tlieir train as near the middle as possible.” It clearly appears that this latter rule was disregarded by the defendant’s employees. If it were necessary that-the air brakes on all the cars' equipped therewith should be' used, nevertheless it was possible to place the car in question considerably nearer the center of the train. But the evidence shows that air brakes could be disregarded and cars equipped therewith could be used without reference thereto and thus placed at the end of the train, and no reason appears why that could not have been done in the train in question and the car of dynamite placed in the center of such train. In any-event, as above stated, such car could have been placed much nearer the center. There seems to have been a clear disregard of a rule which if observed would .have prevented such consequences as resulted from the accident in question. Were it not for the rule as'to the placing of this car as near the middle of the train as possible and the failure of. defendant’s employees to comply with such rule, perhaps the Bernardi case would be applicable. But it falls short of reaching the present situation. It is idle speculation and guess work to reason that, if- this car had been equipped with air brakes it would have occupied any other position in the train.

I think, therefore, the judgment should be affirmed.

Judgment reversed and new trial granted, .with-costs to appellant to abide event.  