
    Joseph Biehl, Respondent, v. Erie Railroad Company, Appellant.
    Second Department,
    May 7, 1909.
    Railroad—negligence—failure of engineer to obey rule requiring care in entering yard — railroad not negligent in failing to furnish. pilot.
    Where a railroad has employed a competent locomotive engineer, and the rules require him to have his train under control when entering yard limits; but, disregarding the rule, he entered a yard at high speed and ran into a standing train to the injury of a brakeina-n; the railroad cannot be held negligent in failing to provide the engineer with a pilot, even though he was not familiar with the particular yard, if no extraordinary conditions existed in the locality.
    Gaynor and Miller, JJ., dissented, with opinion.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 4th day of March, 1908, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 7th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Henry Bacon, for the appellant.
    
      Rosslyn M. Cox [Abram F. Servin with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff, a fireman employed by the defendant, was seriously injured while properly in the caboose of his train eating his lunch at about nine o’clock in the evening, while his train was standing at the station at Englewood in the State of New Jersey, the accident being due to a rear-end collision. The defendant was operating a second train following the one on which the plaintiff was employed, and it is not questioned here that the accident was due to the negligent act of one McKim, the engineer of the second train, who ran into the first train at the rate of from twelve to thirty miles per hour. There is no question that McKim was a competent engineer; he had been employed by the defendant for several years in that capacity and, so far as the record shows, without fault. McKim was not familiar with this particular piece of road operated by the defendant, he having made the run but once before, some three months prior to the accident, and the only question of negligence submitted to the jury was whether the defendant owed the plaintiff the duty of furnishing a pilot, or an extra engineer, who was familiar with the road, evidence being adduced to show that other roads employed such pilots under similar circumstances and that the defendant had done so at times. There was no dispute that the defendant had established a rule that trains must be in complete control in entering yard limits ; that such rules were contained upon a time card furnished to the engineer, and that the time card showed that there was a yard limit established at Englewood and that it was the duty of the engineer to familiarize himself with the rules, and it does not appear to be questioned that the defendant had set a conspicuous white sign at the yard limit at a distance of some 1,500 feet from the point of the collision, or that if the train had in fact entered the yard limits under the provisions of the defendant’s rules the accident could not have happened. The learned trial court practically charged all of these things, but told the jury that it was for them to say whether the defendant should have supplied a pilot under the circumstances of this case. We are of opinion that the exception to this portion of the charge presents reversible error. The court charged, without exception, that the rule was a sufficient and proper rule for the regulation and conduct of the engineers and employees of this company in such places,” and if this was true, and if, with the observance of this rule on the part of McKim the accident would not have happened, the proximate cause of the accident was 'not the negligence of the defendant, but of a fellow-Servant of the plaintiff, for which the defendant is not liable. As was said in the recent case of Pearsall v. N. Y. C. & H. R. R. R. Co. (189 N. Y. 474, 478), “ the real question is, not whether the defendant adopted by its rules the safest plan that could be devised for guarding against accidents, but whether the rules in force were reasonably sufficient, when observed, to protect its servants from such accidents as resulted in personal injury to the plaintiff in this case.” The defendant had discharged its whole duty by the plaintiff when it had furnished him a reasonably safe place in which to perform bis services ; when it had supplied a sufficient number of men and proper equipment and had promulgated rules which, if obeyed, would afford reasonable protection to him. There is no question whatever that obedience to the rule as to yard limits was entirely within the power of the engineer and those operating the train; they could obey the rale just as well without a pilot as with one,. and if the rule had been violated with a pilot on the engine the result would have been exactly the same. The yard limit was fixed and properly marked; the rules called attention to the same, and there Were no such extraordinary circumstances in connection with this particular piece of railroad that any reasonably competent engineer might not have operated the train with perfect safety within the rules which it was his duty to observe. The accident did not occur because of any peculiarity in the railroad; it was, so far as appears from the record, a very ordinary railroad operated by steam, and the accident occurred, not because ' there was not a pilot, but because the éngineer failed to acquaint himself with the rules which the defendant had prepared and'supplied for his government, and to observe the markers which the defendant had erected for his guidance. These things aré all familiar to men who have had experience in operating locomotive engines; it is their duty to be looking out for just such things, and the mere fact that some other railroads, or that even the defendant, has, under certain circumstances, supplied a pilot, perhaps for the better protection of its passengers, does not make it its duty to protect its einployees by the exercise of extraordinary vigilance. It owes merely the duty of reasonable care, and this is fulfilled when it has provided rules which, when observed, are adequate to protect them. This the defendant had done in the case now before us, and it was error to let the jury speculate as to what might have been if the defendant had supplied a pilot. The method adopted by the defendant for transacting its business at the point in question was reasonably safe,1 it depended merely upon competent men performing their duties to insure safety, and that is all that can be required. (Pearsall v. N. Y. C. & H. R. R. R. Co., supra, 479.)

The judgment and order appealed from should be reversed.

Jems and High, JJ., concurred; Gaynor, J., read for affirmance, with whom Miller, J., concurred.

Gaynor, J. (dissenting):

The engineer ran his train into the yard limits of a station and a train standing there at high speed, seriously injuring the plaintiff, who was fireman on the standing train. The said engineer had never been over that section of the road before, except that he had run an engine over it three months before. There was a warning sign upon the track at a point outside of the yard limits, and there was a rule requiring engineers to slow down and have their engines under control after such signs and while in yard limits. But on the whole evidence it was permissible for the jury to find, as they did, that the engineer failed to see the warning yard sign because of his lack of familiarity with the road. An engineer has to look out for and- observe a considerable number of things, and it is plain that' on a road and in a locality that he is unfamiliar with he is quite likely to miss some warning sign or signal. For that reason pilots are sent with engineers who are new to a route. There was evidence that the custom is to send some one along with a strange engineer who is familiar with the route, and the defendant failed in this duty, i. e., to furnish competent fellow-servants to the plaintiff. The said rule to slow down, etc., does not exempt the defendant in such a case. The accident did not happen from a negligent failure of .the engineer to obey the rule, but from the negligence of the defendant in not manning the engine with some one sufficiently familiar with the road and locality to know where such signs were and not to be likely to miss some of them.

The judgment should be affirmed.

Miller, J., concurred.

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