
    Charles Coppins, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 2, 1890.)
    
    1. Negligence—Railroad—Continuing incompetent switchman in employ—Evidence.
    Negligence of a servant does not excuse the master from liability to a co-s 'rvant for an injury which would not have happened had the master performed his duty.
    3. Same.
    No distinction exists in principle between permitting the use of defective machinery and permitting employes to habitually disregard the safeguards that have been provided to insure the safe running and .operation of trains. The duty of a railroad to an employe, so far as reasonable care will accomplish it, is to employ only competent men in the management of its road.
    3. Same.
    Defendant’s rules required that a train should not cross over the passenger tracks at St. Jobnsville within twenty minutes immediately preceding the arrival of a passenger train, and that, until the train had passed, the switches connected with its track should be closed and locked. It was the duty of one Schram, a switchman, to do this, and signal the trains from midday to midnight. Upon the. day of the accident by which, through the switch being opened, plaintiff, a brakeman on the passing train, was injured, Schram left the yard ten minutes before the train was due, and went to his supper. Examination of the switches was not made by any one, and no flag signal was displayed. Schram’s own evidence was that four or five times a month he was absent when the train passed, and that then no signal was displayed; that he knew he had no right to so absent himself. This disregard was known to his fellow employes, and to his immediate superior, Edwards, who had never reported to the division superintendent, who only could remove him, and there was evidence that the latter had actual knowledge of the fact. Held, that defendant was negligent in retaining Schram in its employ after its knowledge of his customary neglect of duty.
    4. Same.
    The jury'were warranted in assuming that, had Schram remained in the yard, he would have complied with tlíe rule and performed his duties in ■ signaling the train. v
    
      Appeal from a judgment of the general term of the fourth judicial department, which modified and affirmed as modified a judgment entered upon a verdict of a jury and denied a motion for a new trial.
    The plaintiff was a brakeman in the service of the defendant and on the 10th day of May, 1880, was employed upon an express passenger, train which was scheduled to pass the station at St. Johnsville at three minutes past five in the afternoon.
    The train was derailed at that point on account of a misplaced switch, and the plaintiff received injuries for which he has recovered damages in this action.
    There were four tracks, numbered from north to south, from one to four. The two south tracks were used for passenger trains, number two being the west bound track. The tracks were connected by cross overs used to pass cars from one track to the other, and the cross overs were connected with the main track by switches.
    Martin Schram was one of the men employed by defendant to shift these and other switches, of which there was a large number in the St. Johnsville yard. On the day of the accident Schram opened the switch at track two to enable a'work train to cross to track one, and neglected to close it, and before the express train was due left the yard and went to his supper. The express train came rapidly from the east and the engineer did not notice the misplaced switch until within five hundred feet thereof, and was unable to ■ stop the train in time to prevent its running upon the cross over. The result was derailment and injuries to the plaintiff.
    Further facts appear in the opinion.
    
      William 6r. Tracy, for app’lt; Louis Marshall, for resp’t.
    
      
       Affirming 17 N. Y. State Rep., 916.
    
   Brown, J.

If the evidence in this case justifies the conclusion that the engineer of the passenger train was negligent in not observing the target at the misplaced switch, or in running his train at a high rate of speed past the station in the absence of signals that the track was safe, that fact of itself is not available as a defense if negligence was established on the part of the defendant, as the law is too well-settled upon principle and authority to be now questioned, that negligence of a servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed his duty. Cone v. D., L. & W. R. R. Co., 81 N. Y., 206; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id., 552; Stringham v. Stewart, 100 id., 516.

We come, therefore, to the consideration of the question of defendant’s negligence, and this involves an inquiry into the rules that had been adopted by defendant to insure the safe passage of trains through the St. Johnsville yard and over the switches in question, and whether the violation of these rules in this particular instance can be charged against the defendant as an act of negligence on its part.

The rules required that a train should not cross the passenger tracks within twenty minutes immediately preceding the arrival of a passenger train, and during that time and until the passenger train has passed the switches connecting with the tracks on which the train was running were to be closed and locked.

Schram and one Fenton were employed in the yard as switch-men, and at the time of the accident Schram’s hours of service were from midday to midnight.

It was the duty of, these men to open and set the switches for trains crossing the tracks and to see that they were closed and locked previous to the arrival of trains on the main tracks. Other men about the yard had keys to the switches, and were accustomed to open and operate the switches when Schram and Fenton were engaged elsewhere about the yard. We are concerned, however, only with the duties of these men as to passenger trains that did not stop at St. Johnsville, and it is of no importance that other duties about the yard may occasionally have called them away from the switches on the arrival of other trains.

As to the trains that did not stop, the evidence of the division superintendent was that it was the switchman’s duty to signal those trains. The safety signals were a white flag by day and a white light by night and the danger signal a red flag in the daytime and a red light at night.

Obviously, a proper performance of this duty included an investigation into the condition of the track and switch to ascertain the fact which was communicated by the signal to the engineer in charge of the approaching train, and the usual manner of executing the rule was thus testified to by Schram. “ I would go down to the switch and see if it was all right about two minutes before the arrival of the train, and then return up toward the depot at the highway crossing and display my signal to the engineer from that locality. I would look over the switches to see they were all right so as to give a proper signal; then I would wait until the train came in sight, and show then a signal, put out a white flag, or a red one if it wasn’t right.”

Upon the day of the accident Schram left the yard ten minutes before the train was due, and went to his supper. The examination of the switches was not made by any one, and no flag signal was displayed.

That this was negligence on the part of Schram is not disputed, but it imposed no liability upon the defendant unless the act can be attributed to it. The plaintiff seeks to so charge it by proof that Schram was in the habit of frequently neglecting to be at his post and signal passenger trains, and was in the habit of frequently leaving the yard and going to his supper about the time the train in question was due at St. Johnsville, and that his habits in that respect were known or ought, with reasonable care and attention, to have been known to defendant.

If the evidence justified this conclusion the defendant’s negligence was established. Ho distinction exists in principle between permitting the use of defective machinery and permitting employes to habitually disregard the safeguards that have been provided to insure the safe running and operation of trains.

The defendant’s duty to the plaintiff, so far as reasonable care would accomplish it, was to employ only competent men in the management of its road. A competent man is a reliable man; one who may be relied upon to execute the rules of the master, unless prevented by causes beyond his own control. Hence incompetency exists not alone in physical or mental attributes, but in the disposition with which a servant performs his duties. If he habitually neglects these duties he becomes unreliable, and although he may be physically and mentally able to do well all that is required of him, his disposition toward his work and toward the general safety of the work of his employer and to his fellow servants makes him an incompetent man.

We are of the opinion that the evidence in this case justified the inference that Schram was in the habit of leaving his post of duty to go to his meals at times when his presence there was demanded to ensure the safe operation of the road. With reference to the train in question his own evidence showed that four or five times a month he was absent when the train passed, and at such times no signal was displayed. He testified that he knew he had no right to go away from the yard without signaling the train when it went through, and that it was his business to be there whether the train was late or on time. This disregard of his duties was known to all the employes about the yard and to the engineer and fireman on the train in question, and it was not an uncommon thing for the train to pass when no signals were displayed. It was known to Edwards, Schram’s immediate superior, but he testified that he never had reported it to the division superintendent, who alone had the power to remove Schram. The evidence was ample to justify the inference that the defendant should have known of the fact and with proper diligence could have ascertained it. There was no secrecy about Schram’s habits in this respect, and the slightest attention to the condition of affairs about the yard in the morning and evening would have disclosed the fact that he frequently left his post at those hours. And we are of the opinion that there was evidence from which the jury could find that Major Priest, the division superintendent, had actual knowledge of the fact.

It appeared from Schram’s testimony that Priest frequently came into the yard when he was at breakfast, and it was not an improper inference therefrom that he should have known of Schram’s neglect of his duties.

The request to the court to charge was not in reference to Priest’s knowledge of his absence at the hour of the day when the accident happened, but as to his knowledge of the violation of the rule which required his presence in the yard during the hours of service.

The court did charge as to this that there was no direct evidence that Priest knew of it, but it refused to charge that there was no proof upon which the jury could find it at all; and this refusal, for the reasons already stated, was not erroneous. We are of the opinion, therefore, that the evidence justified the conclusion that the defendant was negligent in retaining Schram in its employ after its knowledge of his customary neglect of duty. But the appellant claims that such neglect was not a proximate cause of the accident, and the argument is that inasmuch as Schram had after the passage of the work train misplaced the switch, but believed that he had closed and locked it, so that trains could pass west on the main track, that it does not follow that had he remained in the yard he would have again examined the track.

In other words, if he had remained and signaled the train, he would have done so without an examination of the switch, relying upon his mistaken notion that he had already closed and locked it, and also that, as it appeared in evidence that Schram on some occasions failed to signal the train in question because he was engaged elsewhere in the yard, that it could not be assumed that such would not have been the case on the occasion of the accident.

We are of the opinion, however, that the jury were warranted in assuming that had Schram remained in the yard he would have complied with the rule, and performed his duties in reference to signaling the train. It appeared that the work train had crossed the main track about half an hour before the passenger train was due, and after the passage of that train Schram omitted to close and lock the switch.

If he had remained in the yard his duty would have been to have examined these switches again before the passenger train arrived, and before his signal was displayed, to see that they were properly set The presumption that he would have done so must prevail. Here was an accident caused by the failure of a servant to perform a particular duty because of his absence from his post. We cannot assume that had he .been at the yard he would have neglected that which he was there to perform. But the verdict of the jury does not depend upon any such refinement of argument, nor the defendant’s liability rest upon the fact whether Schram might or might not have discerned the open switch had he remained in the yard; but upon the question whether defendant was negligent in retaining Schram in his employment after knowledge that he frequently neglected his duty. This was a fact, as was the question whether Schram’s habit in leaving this switch unattended and going to his supper was negligence.

There was evidence to justify the jury’s conclusion upon both questions, and it was for them to say whether the negligence of the defendant so established was the cause of the accident.

We find no error in the record, and the judgment must be affirmed, with costs.

All concur, except Follett, Ch.J., and Haight, J., not sitting.  