
    Agnes Cameron, as Administrator, etc., Resp't, v. The New York Central and Hudson River Railroad Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 22, 1895.)
    
    1. Master and servant—Co-servant—Constructive notice.
    There is no arbitrary rule of law which charges the master with constructive notice of the negligent omissions of duty on the part of a co-servant, after the lapse of a certain time, under all circumstances.
    2. Same.
    When the negligence of a co-servant in performing his work is of such.a character as to leave traces or evidence of it in the work itself which can be seen or discovered by reasonable examination, the master might be chargeable after it had continued for such a length of time as to render it reasonable to assume that he either must have known of the omission of
    duty, or could have known of it by the exercise of reasonable care, or where the incompetency of the servant is frequently displayed under ■>. eye and observation of some officer or foreman who represents the carpi -ratian or had the power to discharge him
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict, also affirmed an order denying a motion for a new trial.
    
      F. L. Westbrook, for app’lt; John M. Gardner, for resp’t.
    
      
       Reversing 60 St. Rep. 373.
    
   O’Brien, J.

On the 2d of May, 1891, Allen Cameron, the plaintiff’s son and intestate, about twenty years of age, received injuries while in the defendant’s service as a bralteman on the. West Shore branch of its road, at Marlboro station, which subsequently resulted in his death.

There is no dispute in regard to the facts which describe the accident. A train going north, at a high rate of speed, rán into an open cross-over switch upon the south-bound track and came in collision with some standing freight cars, behind which deceased was at work, causing them to be suddenly and violently moved back over him, resulting in the injury which subsequently produced his death. The accident would not have occurred but for the fact that the switch had been left open and unguarded. That this situation was solely due to the negligence of a fellow-brakeman, one Norton, is also undisputed. The deceased and Norton were, on the day of the accident, working upon the same tram, which was a freight train going south, and which had stopped at the station to take on some other cars. It was not claimed that the defendant was guilty of any negligence in employing Norton. He had been in the service about a year, as had also the deceased.

The plaintiff, however called Norton as a witness, and he testiged that for about four months prior to the accident he was accustomed to habitually violate the defendant’s rules in leaving switches open and unguarded. It was not claimed that any officer or person representing the defendant had any actual know: ledge of this conduct. On the contrary, the division superintendent, the roadmaster, yardmaster and dispatcher of trains, all of whom had power to employ and discharge help, testified that they never heard of such conduct on the part of Norton, and that from inspection, observation and report they supposed he was a competent and faithful man, and never heard of his violation of any rules.

The only question submitted to the jury was whether the defendant was not chargeable with negligence.in failing to discover Norton’s habitual neglect and violation of the rules and in omitting to discharge him. It is also conceded that the defendant had enacted and promulgated proper rules and regulations for the government of its servants and employees. It will be sufficient to refer to two of these rules. Buie four provides as follows : “Every employee of the company whose duties in any way are prescribed by these rules must always have a copy o£ them on hand, and must-be conversant with every rule. He must render all the assistance in his power in the carrying of them out; and must report any infringement of them to the head of his department.” E-cJe 117 provides that “whoever opens a switch shall remain at it. until it is closed, or until he is relieved by some competent employee.” It was Horton’s violation of this last rule that caused the accident. He opened the switch and left it open and unguarded, and the north-bound train entered upon it, thus producing the collision which resulted in the death of his fellow-brakeman. The omission of duty did not proceed from ignorance or want of instruction since Horton was familiar with the rules and had a copy of them in his possession. There is no arbitrary rule-of law that charges the master with constructive notice of the negligent omissions of duty on the part of a co-servant, after the lapse of a certain time, under all circumstances. The doctrine of constructive notice is founded upon reasonable and just considerations, and the mere lapse of time is not always the test of negligence on the part of the master. If a defect exists in the appliances furnished the servant for doing his work of such a character and for such a length of time as to enable the master to discover and remedy it by reasonable vigilance, inspection or examination, then the law will imply notice since he ought to know what can thus be ascertained. The same rule will apply where-the place furnished to the servant to do his work becomes defective, dangerous or unsafe by use or otherwise. So when the negligence of a co-servant in performing his work is of such a character as to leave traces or evidence of it in the work itself which can be seen or discovered by reasonable examination, the master might be chargeable after it had continued for such a length of time as to render it reasonable to assume that he either must have known of the omission of duty, or could have known of it by the exercise of reasonable care, or where the incompetency of the servant is frequently displayed under the eye and observation of some officer or foreman who represents the corporation or had the power to discharge him.

But how was the master in this case to know that Horton habitually violated the rules for his own protection and that of his co-servants ? His work was performed on freight trains running over a long line of railroad, with little, if any, opportunity for any officer or representative of the company to watch or observe him at any one point. He had sufficient ability and intelligence to do his work, and his omissions of duty were purely willful or thoughtless. ' It would be manifestly unreasonable and unjust under such circumstances to impute negligence to this defendant for the sole-reason that during four months it failed to detect his delinquencies. The defendant had given him by its rules plain and simple instvuctions to govern his conduct with respect to the switches, and there was no reason to suspect that they would be disregarded, since it was quite as convenient for him to obey as to violate them. Moreover, it had in these same rules invited and requested all of his co-servants to make prompt report to the company of any neglect or disobedience of the rules on his part, and no complaint had been made. It was reasonable to assume that his co-employees, whose lives might be endangered by his neglect, would observe and report his omissions of duty,, if any, and if they failed to observe any how can it be said that the defendant itself was in fault for not discovering what his co-servants themselves had not discovered? The negligent acts of Norton took place while he was working on the same train and in a like capacity with the deceased. It is more reasonable to suppose that they were done in his presence, or under his observation, than to imply knowledge on the part of the defendant, and if it can be said that the deceased knew of these omissions of duty on the part of his fellow-'brakeman, and failed to report them, he might be regarded as voluntarily assuming the risks and dangers incident to his association in a common work with an incompetent co-servant. There is a manifest inconsistency in assuming that the officers or representatives of the defendant knew, or could have known, of Norton’s violation of the rules, and at the same time that the deceased did not. On the evidence in the case it is true that the defendant’s servant was unfaithful, and that his want of care resulted in the death of the plaintiff’s intestate. But the defendant cannot be made liable for his negligent act, unless it was at fault in selecting him for the work, which is not claimed, or in adopting such means as ordinary prudence and care would dictate to secure his fidelity, and we are unable to perceive what more it could have done, unless it employed other men to watch his conduct, and that would be plainly an unreasonable requirement.

The learned court below has upheld the verdict in this case upon the authority of three recent cases in this court, which it was supposed sustained the principle upon which the recovery proceeded. Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557 ; 34 St. Rep. 214; Whittaker v. D. & H. C. Co., 126 N. Y. 549 ; 38 St. Rep. 523; Wall v. R. L. & W. R. R. Co., 54 Hun, 454; 28 St. Rep. 132; affd., 125 N. Y. 727; 35 St. Rep. 995.

There is, we think, a clear distinction between these cases and the one at bar. In all of them there was evidence from which the jury could have found actual notice or knowledge of the incompetency of the co-servant on the part of the master. This case rests solely upon the doctrine of implied or constructive notice. The jury was permitted to find that the defendant was guilty of negligence in failing in some way to ascertain the fact that Norton had habitually violated the rules. In view of the conceded fact that there was no fault in his original employment, and that the defendant had adopted and promulgated suitable rules and had given proper directions for the regulation of his conduct, which it had, under the circumstances, and so far as appears, no reason to suppose would be or were disregarded, the judgment has no reasonable or j ust ground upon which to rest. The habitual and intentional disregard by Norton of the rules was, under the circumstances, entirely consistent with the exercise by the master of reasonable care , and in fixing responsibility for the results of the accident, that must be the only measure of duty To hold that it was bound in any event, after the lapse of a reasonable time, to know the delinquincies or habitual mistakes of all its servants or employees, would be, under the circumstances, to establish a rule unreasonable in itself, and exceedingly difficult, if not impossible, under all circumstances, of any fair or just application.

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

All concur (Bartlett J., in result).

Judgment reversed.  