
    Timothy McAuliffe, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    May 5, 1916.
    Railroad —negligence—injury to freight conductor—when employee engaged in interstate commerce — charge as to duty of oncoming train to signal — mistake of conductor as to identity of train — when question as to plaintiff’s right to warning signal is for jury — effect of former reversal upon question of law only — apportionment of damage under Federal statute — practice—special findings of jury as to contributory negligence — excessive verdict.
    The conductor of a freight train bound from a point in this State to a city in an adjoining State was engaged in interstate commerce although during the journey he had to report for operating orders at certain stations in this State. Hence, although he was injured in this State his rights are governed by the Federal Employers’ Liability Act.
    Where the duties of the plaintiff required him to report for instructions at a certain station and he jumped from his train when it had slowed down to from two to five miles an hour and was struck by an express train running thirteen minutes behind schedule which rounded a curve less than 400 feet distant without warning signals, a charge that if the plaintiff believed a train which he had previously passed was the express train and the jury should find that the plaintiff was not justified in such belief, the jury should find for the defendant although there was no signal given, was more favorable than the charge to which the defendant was entitled and hence is no ground for reversal.
    Although the train which the plaintiff had previously passed was a local passenger train, it cannot be held as a matter of law that he was required to distinguish it from an express train by the difference in speed when the trains were moving at full speed between stations.
    As the plaintiff’s duty required him to cross the tracks at the station where his train was scheduled to stop, he was entitled to a reasonable warning from those in charge of an approaching train, both under the State and Federal decisions. Whether in a particular situation such a warning is required cannot be determined adversely to the plaintiff as a matter of law, but is a question for the jury. Thus it is for the jury to say whether the engineer of the express train before reaching a nearby crossing, or after he had distinguished the lights of the plaintiff’s train, was under the duty of giving a signal.
    Where on a prior appeal a judgment for the plaintiff was reversed on the sole ground that he was not engaged in interstate commerce and the order stated that the reversal is upon questions of law only, the facts having been examined and no error found, there was an implication that the findings as to the defendant’s negligence were sustained.
    
      Under the Federal statute damages attributable to the faults of both plaintiff and defendant are to be apportioned. The jury must lessen the plaintiff’s damages in the proportion which his contributory fault bears (not to that of the defendant), but to the entire causal negligence attributable to both.
    However, whereat the time of trial it was not the custom to require juries to return special verdicts so that damages could be apportioned, a refusal of the trial court to direct findings as to the proportion in which the plaintiff’s negligence contributed to the accident was not reversible error.
    
      It seems, that in future trials under the Federal statute it is preferable that juries return special verdicts.
    
      Held, that under the circumstances a verdict for $40,000 was excessive, and that a new trial should be granted unless the plaintiff stipulate to reduce the recovery to $25,000.
    Jenks, P. J., and Thomas, J., dissented in part.
    Appeal by the defendant, The New York Central and Hudson Elver Bailroad 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 1st day of March, 1915, upon the verdict of a jury for $40,000, and also from an order entered in said clerk’s office on the 2d day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown [William F. Cassedy with him on the brief], for the appellant.
    
      B. H. Barnett, for the respondent.
   Putnam, J.:

The first judgment recovered by plaintiff, a freight conductor in employ of defendant, was reversed by a divided court on the ground that plaintiff was not then employed in interstate commerce. (164 App. Div. 846.)

The record upon the second trial has brought out further details of the plaintiff’s employment on the day before his accident. It had been already shown that plaintiff had been conductor of a freight train that ran from Weehawken, N. J., to Bavena, N. Y. It was not clearly proved what was done on the day following. But it is now established that on this intermediate day, February fifteenth, plaintiff was ordered with a locomotive and caboose to Newburgh, where he took charge of a freight, local bound, back to Eavena, carrying merchandise destined to points in Massachusetts.

About four-twenty p. ai., February sixteenth, the day of this casualty, plaintiff, with locomotive, tender and caboose, left Eavena bound south. He was then handed a clearance card reading Clear to Weehawken,” giving this trip a definite. character as an interstate return to Weehawken. Although plaintiff had to report for operating orders at divisional points, like Kingston and Cornwall, this card made it plain that his service was not a series of short runs between local points, but that he was bound through to Weehawken. The caboose in which the men were returning was the same as on the trip north on February fourteenth. It was bringing back the full freight crew. The locomotive, however, was different. With the ampler proofs on this second trial, bringing out the details of the character of the trains on the intermediate trip from Newburgh to Eavena, including the order to take a disabled, locomotive from West Haverstraw across State lines to defendant’s roundhouse either at G-ranton or New Durham, we think an employment in interstate commerce has been sufficiently made out.

Appellant, however, contends that plaintiff was hurt solely through his own neglect. This locomotive and caboose were rounding a moderate curve as they came south into Cornwall about seven fifty-five p. M. When opposite the station plaintiff came out on the front platform to listen for signals, as he had to cross the north-bound track and register with the local train dispatcher. Before his locomotive had stopped, and while running from two to five miles an hour, plaintiff stepped off the front of the caboose and had made one step into the north-bound track, in front of the north-bound Chicago express (train No. 3), which struck him, causing very severe injuries. This express train was scheduled to arrive at seven forty-two, and was about thirteen minutes late.

Beyond the station to the south (from which direction the express came) wére two highway grade crossings — Hudson street, 182 feet south of the station, and, at a distance of 392 feet from the station, Clark’s crossing, with a curve in the tracks between, so that from abreast the station a train could not be seen until 350 or 400 feet away. About 2,000 feet south of the station is the first whistling post, and then a second whistling post set 1,080 feet from the station. The practice under defendant’s rules was for a long blast to be sounded, as a station signal, before a north-bound train would be in sight from the station; and then when the locomotive was between these two grade crossings, so that the engineer could see the tracks ahead at the station, to give two or three short blasts when he came in sight of any train then standing on the south-bound track or entering the station. Several short sharp blasts are also recognized railroad signals to persons on the tracks or in dangerous proximity thereto.

The engineer of the express claimed that he gave this station signal, and that the bell was rung, but no later whistle.- As the automatic bellringer on the locomotive had broken down twenty-nine miles below at Nyack, it was claimed that the fireman rang the bell by a cord from a seat in the cab. There was evidence, however, from one of defendant’s section hands, that a man with a light, presumably this fireman, was seen standing back on the tender as the locomotive passed the station.

On this second trial the engineer admitted that when at a distance of about 300 feet he first saw the headlight of plaintiff’s train, which from its signals he recognized as an extra, so that its conductor would have to cross ■ the north-bound track to register, with a return over this track to his train; that although he had this view, with this knowledge of the situation when 300 feet from the station, he gave no further warning signals, notwithstanding his approach from rounding this curve in the track.

' In view of the verdict, we must take it as a fact that this Chicago express did not give any of the usual signals by whistle or bell, before this casualty.

When about a mile and a half to the south of Newburgh plaintiff passed a north-bound passenger train, which he mistook for this express. In submitting these issues to a jury, the learned trial court told them that a signal is not needed to warn a person who already knows that a train is coming. He added: “But in this case the plaintiff claims that although he knew about the schedule of the time the train No. 3 was due at Cornwall, nevertheless he believed that it passed him below Newburgh, but that it was not upon time, and not being in upon time he was entitled to the additional warning upon the part of this defendant. So if you should find in this case that the plaintiff was not reasonably justified in relying upon the belief that the Chicago Express No. 3 had passed his train outside of Newburgh, where he says this train if on time usually passed him, and you should find that there was no whistle sounded or bell rung, then you should find for the defendant.”

The court thus ' ruled that the engineer was not. held to signal to the conductors of other trains in order to advise them Of the approach of a regularly scheduled express, if it were substantially on time, since such employees must, perforce their duties, become familiar with such train arrivals.

Schowerer v. New Jersey & New York R. R. Co. (164 App. Div. 865), also a freight train on a siding, does not control here, because in that case the incoming train was substantially on time. Hence this court might well have given the instruction that if train No. 3 came into Cornwall so late as to be substantially behind its time of scheduled arrival, they might find that signals should be given, not only to warn passengers and those at a public crossing, but towards a freight conductor such as this plaintiff, having to cross the track to register at the station. The instruction as given, therefore, was more favorable to defendant than it was entitled to.

Appellant urges that the verdict to the effect that plaintiff was reasonably justified in supposing No. 3 had passed, was against the greater weight of evidence. That, however, becomes of less importance in the view we take of the charge. The testimony inclines to the view that the north-bound train which plaintiff had passed was a local passenger train. It could hardly be held, as matter of law, that from the greater speed and number of the cars of a train thus met at a point between stations, where trains pass at their ordinary full speeds, a freight conductor would be bound to identify and distinguish an express from a local passenger train.

While we held that the duty to signal when a train approaches a crossing does not ordinarily apply to an employee who leaves a place of safety to cross the tracks for a purpose of his own (Connell v. N. Y. C. & H. R. R. R. Co., 144 App. Div. 664), this is a different situation. Plaintiff’s duty required him to cross the tracks at Cornwall, a stop station for the express. He had listened without having heard any of the usual signals. His position and probable danger became manifested to the express engineer. Both by the Federal decisions (Norfolk & Western Ry. v. Earnest, 229 U. S. 114; Franchina v. Chicago, B. & Q. R. Co., 195 Fed. Rep. 462), and by those of this State (Roll v. Northern Central R. Co., 15 Hun, 496; affd., 80 N. Y. 647; Blanchard v. D., L. & W. R. R. Co., 211 id. 79), the employee crossing the tracks in the line of his duty may be entitled to a reasonable warning from those in charge of an approaching train. Whether, in a particular situation, such a warning was required cannot be determined adversely to plaintiff as a matter of law, but is a question for the jury. An issue remained for the jury as to a duty resting upon the engineer of this express train to give some signal, whether before reaching Clark’s crossing, or after he had made out the distinguishing lights of this locomotive, with the indication that a person from this train would have to advance across the path of this express to register his arrival. Indeed, our previous order, when resettled, reversing on the sole ground that plaintiff was not engaged in interstate commerce, our reversal being “upon questions of law only, the facts having been examined and no error found therein” (164 App. Div. 846; 166 id. 931), by implication sustained the findings then made of defendant’s fault.

Defendant’s counsel asked the trial court to direct the jury to find specially “what proportion of the plaintiff’s negligence contributed to the accident, in case they should find that the plaintiff’s negligence was not the sole cause of the injury.” This the court denied, to which defendant excepted.

The Federal Employers’ Liability Act (35 U. S. Stat. at Large, 66, § 3), by which contributory negligence lessens the damages, is borrowed from the early negligence rule in Illinois, and the existing Georgia practice now embodied in Georgia statutes (Thornton Fed. Emp. Liability [3d ed.], § 78); also from the admiralty rule of apportionment. (60 Cong. Record, 1st Sess. p. 4536, quoted by Thornton [supra], p. 169.)

If the damages are attributable to the faults of both plaintiff and defendant, the Supreme Court of the United States has strictly defined how such damages are to be apportioned. The jury must lessen plaintiff’s damages in the proportion which his contributory fault bears (not to that of the defendant), but to the entire causal negligence, attributable to both. (Second Employers’ Liability Cases, 223 U. S. 1, 50; Norfolk & Western Ry. v. Earnest, 229 id. 114; Grand Trunk R. Co. v. Lindsay, 233 id. 42, 49; Seaboard Air Line v. Tilghman, 237 id. 499.)

At the date of this trial (February 16-24,1915) juries did not generally return special verdicts under this statute. Appellant cites New York Central & H. R. R. R. Co. v. Banker (224 Fed. Rep. 351, decided June 22, 1915, four months after this trial), where Lacombe, J., said (p. 354): “ Incidentally it may be remarked that it will be helpful in all trials under this act to have the jury indicate whether they find negligence on the plaintiff’s side, and, if so, by how much they have reduced the verdict against the defendant.”

However exact theoretically the doctrine of comparative negligence may be, it has been doubted whether its administration will not become too complicated to be left to a jury. (Beach Contrib. Neg. § 82.) Yet it is less intricate than many other matters on which they have to pass. But -these difficulties require that the factors entering into the verdict should appear in a form to prove that the statute, and its method of ■ apportionment, have been observed. If by its large amount the verdict indicates that the jury reached it without any reduction, it amounts to a finding that plaintiff was free from contributory fault. Yet, according to the trial practice as understood and followed a year ago, both in the Federal and State tribunals, we cannot say that the court committed reversible error in refusing counsel’s request. To ask a jury for the proportion ” of plaintiff’s negligence might indicate a fractional ratio, rather than the sum by which they lessened his recovery. If such a request were to be made, it should have presented more concretely the form for the special verdict.

In. future trials under this statute, we think it is preferable that juries return special verdicts. In this way the jury can better follow the processes of arriving at the recovery. By proper questions under Code of Civil Procedure, section 1187, the jury may be asked to say, for instance: If they find that defendant’s negligence proximately caused this injury, what is plaintiff’s total damage ? If plaintiff’s own want of care helped produce his injury, how much have they reduced plaintiff’s damages? Thereby, trials in the State court will accord with the more recently adopted method of returning verdicts under the Federal Employers’ Liability Act in the United States District Courts.

In whichever manner this jury may have contrasted the opposing charges of neglect, we think their $40,000 verdict excessive. If reached after a reduction, obviously this result, regarded as a residuum of plaintiff’s damages, becomes still more extravagant. Hence the amount of the verdict calls on us to interfere.

I advise that the judgment and order be reversed and a new trial granted, costs to abide the event, unless within twenty days from the entry of the order herein plaintiff stipulate to reduce the amount of the verdict to $25,000; in which event, the judgment as thus modified, with interest thereon from its entry, March 1, 1915, and the order will be affirmed, without costs of this appeal.

Stapleton and Mills, JJ., concurred; Jenks, P. J., and Thomas, J., concurred in the suggestion as to the form of verdict, but dissented from the affirmance of the judgment on the ground that in their opinion the plaintiff’s negligence was the sole cause of the accident.

Judgment and order reversed and new trial granted, costs to abide the event, unless, within twenty days from the entry of the order herein plaintiff stipulate to reduce the amount of the verdict to $25,000, in which event the judgment as thus modified, with interest thereon from its entry, March 1, 1915, find the order are affirmed, without costs of this appeal.  