
    Warren Dayton, Jr., Plaintiff, v. The Brooklyn Height Railroad Company, Defendant.
    Second Department,
    April 19, 1907.
    Negligence—collision on elevated railroad—failure of defendant t® promulgate rules.
    It is for the jury to say whether a defendant operating an elevated railroad in negligent in failing to adopt and enforce a rule requiring employees of a stalled train to go hack' oh the track to gi ve warning to approaching trains.
    Motion by the defendant, The Brooklyn Heights Railroad Company, for a new trial, upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance; upon the verdict , of a jury in favor of the plaintiff for $15,000, rendered after a trial .at the Kings County Trial Term, and an order bearing ■date the 26th day.of March, 1906, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      I. R. Oeland [George D. Yeomans with him on the. brief], for the defendant. . ' .
    
      Samuel Evans Marres [Samuel T. Maddox, Jr.\ and FrwnJc F.
    
    
      Da/ois with him on the brief], for the plaintiff.
   Hooker, J.:

The plaintiff was a guard on an elevated train operated by the defendant on Fifth avenue in the borough of Brooklyn. The train on which he was serving became stalled between Twenty-ninth and Thirtieth streets, and the lights went out, except as to two small red lights shining from the end of the rear car. It w.as dark, but clear. Another train coming from Thirty-sixth street ran into the rear of the stalled train with such force that the plaintiff, who was not on the rear car, was precipitated to the street below and received injuries • of a very serious character. The motorman of the on-coming train was killed, but from the management ■ of his train it is a fair inference that, he did not see. the stalled train; On the stopping of the train the rear brakeman, standing, on the rear platform, swung one of the red lights back and forth across the track for the evident purpose of warning other trains. The track runs on a down grade from Thirty-sixth street to Twenty-ninth street.

The plaintiff urged that the defendant’s rules were insufficient to protect employees from the effects of rear-end collisions: such as this. The rules that were in force imposed upon the conductor of trains that were compelled to stop for any iinusual reason the duty of protection by signals displayed at the rear of the train, and charged all motormen with the duty of a high degree of watchfulness. The plaintiff suggests, however, that the defendant was negligent in not promulgating and enforcing a rule requiring some person to go back from the rear of a stationary train far enough so that a warning from him would prevent a collision of this sort. It appears from the evidence that upon all steam surface railroads a rule obtains which requires the rear brakeman to go back along the track a given distance from a train which is stalled for the purpose of stopping following trains. While some of the plaintiff’s witnesses testify that similar rules have obtained in the operation of elevated railroads, it is not clear that such is the -case. The defendants witness' Smith. testified, and it must be apparent, that there is a difference between the operation of an elevated railroad and that of an ordinary steam surface road, as to speed, as to the class of trains, as to the method of handling trains, as to the frequency with which trains are run, and as to the character of the service-performed.

Ordinary diligéñce measures the duty of the master to make - . rules ; arid generally speaking it is for the jury to detérmine whether the master has discharged-that duty where, the situation, is complicated. (Devoe v. N. Y. C. & H. R. R. R. Co., 174 N. Y. 1, and. cases -there cited.) It is there said “ What is. reasonable and " proper finder a complicated state of facts; permitting diverse infer'enees, is a question of fact.” ' The situation in this case- was complicated; trains were running frequently, if not-under high speed;; there was a sharp grade downward in the direction, in which the. 'trains were running; the night was dark, though clear; the lights on the stalled train were either entirely or almost all extinguished," except two Ted lights which some of the witnesses describe as. very dim; the lights of the city were to be seen and might easily be confused-With what were left of-.the lights on the train.; the general ■ business of operation was inherently dangerous. Hnder the circumstances,.the question of negligence in the failure to promulgate and enforce a rule requiring some one to go back on the track and warn; approaching trains, was for the. jury.

The judgment should be affirmed, with costs.

Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ. ,

Defendant’s exceptions overruled, and judgment.and order unanimously-affirmed, with costs.-  