
    Gordon Ryan, as Administrator, etc., of Frederick Ryan, Deceased, Appellant, v. The Delaware and Hudson Company, Respondent.
    Third Department,
    June 27, 1906.
    Negligence—injury to brakeman by collision of trains — inadequate rules.
    The rules of the defendant, which operated a single-track line, provided that a train followed by a second section should display green lights when passing other trains on a switch, and should call attention to the lights by a peculiar whistle, which should be answered by the train passed.
    A train followed by another section displayed the lights and gave the required signal while passing a train upon a switch, hut the hitter train, owing to escaping steam, did not observe the signal nor answer it. The plaintiff’s intestate, employed as a brakeman on the second section, was killed by a subsequent collision. Plaintiff proved that a rule was adopted by two other railways providing that in case such signal was not answered by the train passed the passing train should stop until its signals were acknowledged.
    
      Held, that it was for the jury to say whether the defendant was negligent in not adopting such additional rule, and that a dismissal of the complaint was error;
    That the negligence, if any, of the engineer of the train passed did not exonerate the defendant, if it also was negligent in not promulgating such additional rule ;
    That as the train on the switch was blowing off steam its grew was not hound, as a matter of law, to hear the signal;
    -That although the defendant bad a rule inquiring the crew of a train to be on the outlook, the rule was inadequate, as it stated only a common duty which , would exist without rules.
    Appeal by the plaintiff, Gordon Ryan, as administrator, etc., of Frederick Ryan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Washington on the 23d day of March, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Washington Trial Term.
    The defendant operates a single-track steam railroad north of Whitehall. On June 20, 1903, a regular north-bound passenger train was scheduled to. leave Whitehall at two o’clock in the morning. It left the latter place more than forty minutes behind time. Following it as a second section and leaving Whitehall five or ten minutes later was a light engine on which Frederick Ryan, the plaintiff’s intestate, was traveling as a brakeman in the employ of the defendant. At Putnam, fifteen miles north of Whitehall, a south-bound freight train stood on a side track awaiting the arrival and passing of the passenger train.
    The rules of the defendant in force provided that two green flags, and in addition two green lights by night displayed in the places provided for that purpose on the front of an engine, indicated that the train was followed by another train as a section under the same schedule; that when signals were displayed for a following train the whistle must be sounded by giving one long and two short blasts to call attention to the signals carried, and that this signal must be acknowledged by two short blasts from the train which was signaled. When the first section of the north-bound train approached the freight train the signal lights were displayed and the whistle was sounded as required by the above rules. The crew of the freight train, however, did not hear or observe the signals, and so of course did not acknowledge them. The engine of the freight train at the time was blowing off steam ; the engineer and conductor were engaged in the performance of work connected with their train. Immediately thereafter the freight train entered the main track, proceeded southerly about four miles, met and collided with the engine constituting the second section of the northbound train, and Ryan was killed.
    The purpose of this action is to recover damages sustained by the plaintiff on account of the death of his intestate by reason of the alleged negligence of the defendant. The trial court at the close of plaintiff’s evidence dismissed the complaint, and the correctness of such determination is the question presented on this appeal.
    
      
      G. B. Wellington and James A. Burnham, for the appellant.
    
      Lewis E. Carr, for the respondent.
   Cochrane, J.:

The law imposed upon the defendant the duty of making and enforcing such reasonable rules and regulations for the government of the men.in its service as to prevent or guard against injury by one servant to another in so far as that was reasonable and practicable. (Doing v. New York, Ontario & Western R. Co., 151 N. Y. 583; Corcoran v. Delaware, Lackawanna & Western R. R. Co., 126 id. 673.)

It was held by the learned trial court that the rules ¡Dromulgated by the defendant were adequate and sufficient and that the accident was caused solely by the negligence of the crew of the freight train in not properly observing such rules. It was proved that two prominent railroad companies had, in addition to the rules above set forth, a further rule which as applicable to this case would have required the first section of the north-bound passenger train to stop at once in case its signals were not acknowledged by the freight train and not to proceed until they were acknowledged. The reasonableness and practicability of such an additional rule was thus established by proof of the fact that it was in operation by other railroad companies. Had such an additional rule been in force by the defendant this accident would not have happened."

It is said by the defendant that the crew of the freight train was required by the rules to be on the lookout, to be observant, and in case of doubt or uncertainty to take the safe course and run no risk, and that if such rules had been observed the accident would not have hapqiened, and, hence, that the rules were adequate. Such rules- must be given a reasonable construction. It would be' unfair' for the defendant to shield itself behind such general and indefinite • provisions. Those rules simply express what would be the duty of the defendant’s employees without the rules. The jury might have found in this case that by reason of a curve in the" defendant’s road the green lights were not observable more than four or five seconds before they passed the engine of the freight train. It could not be expected that the engineer of the freight train would be on the lookout every second of time in the direction of an approaching train, which was more than forty minutes late, and even if it can be urged successfully that the rules of the defendant placed on him such a requirement, such rules would not as a matter of law be reasonable or adequate for the protection of the defendant’s employees. So, also, if the freight engine was blowing off steam, it cannot be said as a matter of law that the crew of the freight train was bound to hear the whistle of the passing engine. The engineer of the freight train testified that nothing attracted his attention but the noise from the relief valve on his own engine.

The case is not analogous to the cases of Shannon v. New York Central & H. R. R. R. Co. (88 App. Div. 349) and Smith v. New York Central & H. R. R. R. Co. (88 Hun, 468). In the first of those cases an engineer failed by reason of a dense fog to observe a danger signal requiring him to stop. It was proved that other railroad companies operating under different conditions and with different systems of rules, had a rule requiring that in such a case torpedoes be placed on the track as an additional warning of danger. But it appeared that the defendant company had a rule that a signal imperfectly displayed or the absence of a signal shotúd be regarded, as a danger signal and as a command to stop, and hence the engineer was already informed by the rules in force that it was his duty to stop, and an additional rule providing for the use of torpedoes would have given no additional information and would have been superfluous. So, also, in the Smith case, while it appeared that other railroad companies had different rules than those adopted by the defendant, yet at the same time it appeared that a semaphore displaying a danger signal was set, and that the train in question passed the semaphore without heeding this warning to stop, and thus the collision occurred. In both of those cases the rules were adequate to actually inform the persons charged with their observance of the facts which-constituted the impending danger. Here the rules were not as matter of law adequate to accomplish that object. It was a question for the jury whether or .not the defendant was negligent in not having promulgated rules which were adequate to convey to the crew of the freight train the information that the north-bound train was running in two sections.

Even if the crew of the freight train was negligent in not observing and heeding the signals, nevertheless such negligence does not exonerate the defendant for an injury which would not have happened had it properly performed its duty. (Coppins v. New York Central & H. R. R. R. Co., 122 N. Y. 557.)

The judgment -must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  