
    Virginia Aubrey, as Administratrix, etc., of Edgar E. Aubrey, Deceased, Respondent, v. Hudson Valley Railway Company, Appellant.
    Third Department,
    June 29, 1910.
    Railroad — negligence — death of conductor — failure to provide sand., box — fog — competence of motorman — contributory negligence — duty of conductor.
    Where, in an action for the death of a conductor, by the collision of his car with a car ahead which was stopping to unload passengers during a fog, the motorman testifies that the accident was so sudden and unexpected that he had neither time nor opportunity to make use of sand; that he did not know whether a sand- box was on his car or not, and that he would not have used it if it was there, it is error to allow the jury to find the railroad negligent in failing to equip the car with a sand box.
    
      Nor can. the defendant be charged with negligence for not anticipating that a fog of unusual density might form on part of the line.
    Where it appears that the motorman had previously operated a freight car over the road at night and there is no claim that he was inexperienced or income petent, it is error to permit the jury to find negligence because the motorman was not familiar with the usual stopping places on the part of the road where the accident happened.
    Since the rules provided that conductors should be familiar with the stopping places, and know that the men employed on their trains were familiar with their duties, it was the duty of the deceased to supplement any unfamiliarity of the motorman with the stations by his own knowledge.
    Where it appears that the conductor, in violation of a rule of the company, knowingly permitted his car to follow the one ahead which was running on a schedule at a less interval than two minutes; that he ran part of the'way only 800 feet behind it; that instead of being on the rear platform, as required by the rjiles, he was at the time of the collision, for no known reason, standing directly behind the motorman, he was guilty of contributory negligence which bars a recovery.
    As he knew the proximity of the stopping place where. the accident occurred, and that the other car, according to its schedule, was just ahead, and that there was danger of a collision by reason of the fog, he owed a duty of active vigilance to see that the car was so operated as to avoid collision.
    Appeal by the defendan t, the Hudson Valley 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 Washington on the 27th day of January, 1910, upon the yerdict of a jury for $5,000 áfter' a trial at the Washington Trial Term, and also from an order entered in said clerk’s office on the same day denying the ' defendant’s motion for a new trial made upon the minutes.
    About six o’clock in the morning of September 23, 1908, a trolley passenger car of the defendant in charge of plaintiff’s decedent, Edgar E. Aubrey, as conductor, left Glens Falls for Fort Edward and Thomson. At Fort Edward the conductor and motorman received orders by telephone from the dispatcher at Stillwater that for the remaining distance to Thomson they were to follow another passenger car bound for Troy. The two cars left Fort Edward at an interval of not more than a minute or a minute and a half. After leaving Fort Edward a heavy fog settled down over the track. At Fort Miller, seven miles from Fort Edward, the Troy car was standing at a street crossing discharging passengers when the car in charge of Aubrey plunged into it with such violence as to drive the Troy car forward, although its brakes were partly set, for a distance varying from 175 to 250 feet, according to the estimates of the different witnesses. The forward vestibule of Aubrey’s .car by the force of the collision was driven forward about ten feet into the rear of the Troy car. Aubrey was standing at the time either in the front vestibule or in the door leading therefrom into the car and was killed.
    ■ Plaintiff has recovered a verdict because of the negligence of the defendant in causing the death of Aubrey and from such judgment the defendant appeals. , ■ '
    
      Lewis E. Carr and James McPhillips, for the appellant.
    
      Erskine C. Rogers and John E. Sawyer, for the respondent.
   Cochrane, J.:

The jury was permitted to find negligence on the part of the defendant because it had not equipped the rear car with a sand box. The motorman of that car was called as a witness by the plaintiff. He testified as to his futile, efforts to stop the car as soon as he' perceived in the fog the car ahead of him. He says he applied the hand brake and also the air brake and reversed the power, but without avail. He further testified : '“ I did not use the sand; the only chance 1 had was the air. I did not look to see if there was any sand there; I did not see any. I did not seem to see any sand box on that car. As a rule, they are equipped, but I cannot tell you whether- there was sand there or not. I will not swear that this car had a sand box on it. Generally cars have them. The purpose of sand is in case of a slippery rail, or after a little rain or. something like that, when your rail gets moist, to aid' the brakes in holding the car.” Subsequently he was asked by the plaintiff’s counsel: If you had time to do what you have described why had you not time if it had been there to have touched your foot to a little pedal and opened the sand box and let sand down to the rail? ” to which question he • made answer : “ I did not have time to do anything only throw the brakes as I have told you.” It is clear from his testimony that the absence of sand had nothing to do with the accident. The motorman did not attempt to mse it and did not know whether it was there or-not, and would not have used it had it been there. The purport of his testimony is, that the accident was so sudden and unéxpected that he had neither the time nor the opportunity to make use of sand. The negligence, if any, of the defendant, therefore, in not furnishing sand had nothing to, do with the accident, and it was error to 'permit the jury to predicate their verdict on such ground of negligence.

The jury was further permitted to find negligence against the defendant because the motorman of the rear car was not familiar with this particular portion of the defendant’s road. He had previously operated-a freight car over this locality in the night, but claims not to have been familiar with the usual stopping places, and it is contended that the defendant was chargeable with knowledge of the. foggy condition of the weather and should not on that account have intrusted the operation of this car to this motorman. The great preponderance of evidence is that the atmosphere was clear when the car left Glens Falls. There is no evidence whatever as to the condition at Stillwater, from which place this train crew received orders to follow the Troy car from Fort Edward. The motorman himself testifies that the fog did not begin to settle until after he left the latter place, and that at a point only three or four miles from the collision he saw. the car ahead of him at a distance which he estimates to be 800 or 900 feet. He says the fog then began to settle rapidly. Assuming, however, that the defendant was chargeable with knowledge of the weather conditions, it was not negligent in intrusting to this motorman the operation of the car. There is no claim that he was an inexperienced or incompetent man. He knew the Troy car was preceding him with a headway of only one and a half minutes as he himself testifies. While he may not have known as well as some others the exact location of Fort Miller he must have known in a general way that it was not far distant, and he certainly knew that he was following a passenger car which was liable to stop for the accommodation of passengers. If the fog was as dense as claimed, no motorman, however familiar, with the locality, could have had much more knowledge than himself of his exact whereabouts with reference to the particular stopping places along the road. The defendant could not reasonably be charged with negligence for not anticipating that a fog of unusual density would form at Fort Miller when the car was within three or four miles of that place, even if it had knowledge of the general atmospheric conditions, when the car left Glens Falls. Certainly, it-can hardly be claimed that the defendant would have been negligent: in sending out this motorman with a car -at night and no difference existed which made it any more negligent' to do so in the daytime although a fog existed. Moreover,, a rule of the' defendant expressly made it incumbent upon the conductor to know that the motorman was familiar with his duties. The rule is as follows: “ They (passenger conductors) must know that the men employed on their trains are familiar with their duties.” It was further made his duty to have personal familiarity with, the localities along the road so that he might “ distinctly announce the names of streets, stop stations, transfer points,xwhen approaching same.” Consequently, if the motorman was not sufficiently familiar with the stop stations it was the duty of the conductor to be aware of that fact and tc- supplement such unfamiliarity with his own knowledge.

I am also of the opinion that plaintiff failed to establish freedom from negligence on the part of the decedent. ■ The burden rested on her to establish that feature of the case. A determination of the question, as to whether or not-she has successfully borne that burden must-be made with reference to the rules-of the defendant which 1 governed the conduct of the deceased and his duties and responsibilities as conductor, of the car. As such conductor under the rules of the defendant he was made “ responsible for the movement, safety and care of the train and for the vigilance and conduct of ' the mén employed thereon.” Another-rule provided that: “Trains-in the. same direction must, keep at least two minutes apart.” There was a distinct violation of this latter rule by the deceased in permitting his car to leave Fort Edward as the uncontradicted evidence shows within a minute or a minute and a half after the Troy car left that place. It does not of course necessarily follow that the violation of this rule at Port Edward' caused the accident at Fort Miller seven miles away. But the Troy car was proceeding on schedule time. The rear car was an extra. At a place known as “ Black House,” about three miles from the accident, the intervening space between the cars " as estimated by the motorman was only about 800 feet. At Patterson, about two miles from the accident, the rear car stopped to let off a passenger. The deceased of course was chargeable with knowledge of the schedule time of the Troy car. There is no contention that at the time of the collision at Fort Miller it was behind its schedule time. Under the circumstances here appearing, bearing. in mind that the conductor had in his charge the actual movement and operation of his car not only with reference to his own safety but also with reference to the safety of his passengers, it does not sufficiently appear that he was exercising the caution required by the exigencies of the situation. He negligently permitted his car to'leave Fort Edward in too close proximity to the preceding car knowing that the latter car was proceeding on a prepared schedule and was making stops for the accommodation of passengers and he apparently made ho effort to keep at a sufficiently safe distance therefrom. When the fog settled more densely and the danger was thereby increased, his responsibility also increased in proportion to the increasing danger. As stated it was his duty according to the rules of his employment to know whether his motorman was familiar with the location of the stop stations. As a competent conductor in the performance of his duty to the defendant he was bound to know that he was approaching Fort Miller where the Troy car on a fixed schedule might at that moment be discharging passengers ; that his motorman was not familiar with the -location; that there was danger of a collision because of the difficulty of seeing objects in the fog, and with knowledge of all these facts he had the power to see that the car was operated in such a way as not to meet with disaster and he owed the duty of active vigilance in that respect. So far as the evidence discloses he took no precautions whatever. He was standing directly behind the motorman, According to the testimony of the latter no word of warning or caution was given either as to the speed of the car or otherwise. Moreover the deceased was not at his post of duty at the time of the collision. The rules distinctly required him to be on the rear platform when not collecting fares or otherwise engaged and to keep his hand upon the trolley rope when passing over switches, crossings, or going through curves.” The collision occurred directly on a crossing which was also an important stop station. While the fog may have excused him from knowing that he was exactly at that crossing he must have known that he was closely approaching it because he had stopped at Patterson, only two miles distant. The motorman positively disclaims any communication with him / after leaving Patterson, so that it is very clear that there was no occasion which required him to be absent from the rear platform, where in obedience to his instructions he should have been. The evidence is, therefore, insufficient to sustain the determination of the jury that the deceased was exercising due care.

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

All concurred.

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