
    Charles Coppins, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Negligence—Master and servant—Liabilities.
    Employers are not bound to insure against accidents, they are only obliged to provide appliances which are safe, so long as used without negligence; the employee takes the risk of danger from negligence of his co-employee. ,
    
      2. Same—Duty to provide safest instruments,
    Between employer and employee the law does not requires the safest appliances or instruments, nor does it fix a liability upon the employer for the failure to discard, those which are not safest for every exceptional exigency.
    3. Same—Railroad—Kind of switches not for jury to determine.
    It may not be left to the jury to say what switches, what patented article or contrivance shall be used by a railroad company, in order to escape liability from injury to an employee caused by the negligence of a co-employee.
    Appeal from a judgment on a verdict of $15,000 taken at the Onondaga circuit, and an order denying motion for a new trial on minutes, and from an order granting an extra allowance".
    Plaintiff, was a brakeman in the employ of defendant, and had been in its service quite a number of years, and was injured May 10, 1880, when the- express train coming west on track No. 2 was derailed, because a switch at St. Johnsville was left open. On the north side of the road there was a freight house, coal depot and water tank; on the south side of the tracks was an engine house and other structures.
    A branch, known as a cross-over, was kept by defendant for the purpose of the business passing across the main tracks from the north side of the engine house and branches on the south side of the main tracks. It was what is known as a direct cross-over, and connected to the main track by switches. The switch connecting the cross-over with track No. 2, on which was running plaintiff’s train, has been unlocked, and the train on No. 2 when it reached the switch took the cross-over and passed toward track No. 1, and defendant claims before reaching track No. 1, and after reaching it, plaintiff claims, left the track and was wrecked. Plaintiff claims that a certain safety switch, known as the “ Ooolc switch,” should have been used on No. 2 in connection with a trailing cross-over and set for such crossover, and that the train then would have passed along No. 2 in safety, notwithstanding the misplaced switch.
    Defendant claims this was in fact a “Cook switch” properly constructed and in good working order at the time -of the accident. The court left it to the jury to say whether or not defendant was negligent in maintaining a direct cross-over at this place.
    General Priest, the superintendent, and others, said it was needed- in the business, and was proper and suitable for the use required. Evidence was given by plaintiff tending to show the contrary.
    Plaintiff also claimed other negligence on the part of defendant. That Schram, the switchman, was an improper and incompetent employee and improperly retained in defendant’s service.
    The court charged the jury: “You are to take all the surroundings of this case as they existed at and just prior to this accident in 1880, and say whether’ at that time, with the means that this company had in its hands, with the knowledge it had of safety switches, and the knowedge it had of the different kinds of cross-overs, with the knowledge it then had of the liability to accident, you are to consider what it was reasonable and proper that this company should be required to furnish as a means of safety against the occurring of accidents. * * * Was a direct cross-over, as they had it there, safe and proper, reasonably so, for this company to furnish at that time ? Or, in order to have furnished a reasonably safe and proper cross-over, ought they to have had a trailing cross-over.
    Also, “ The question of fact is for you upon this question we are considering now, whether there was a failure at that time and immediately prior to this accident to furnish reasonably safe and proper road-bed, track and appliances at the point of this accident.”
    Also, if the cross-over had been a trailing one, and the Cook switch there in use, would the train still have been derailed and the accident occurred L If it would, notwithstanding a trailing cross-over was there, then there is no right of action. But if a trailing cross-over had been there, and then the train would have gone over in safety, why then you may find that the failure of the defendant to put a trailing cross-over there where the direct now is, was the cause of the accident; that in the absence of that neglect, on the part of the company the accident would not have occurred.”
    The court was requested to charge “that the defendant had the right to "assume that the "train in question would pass through St. Johnsville on the usual track, and that its switches would be properly closed by its employees, and that it was not bound to provide escapes from that track to the-south track as a guard to its servants’ possible neglect of duty, and that it was one of the risks taken by the plaintiff in his employment and continuing in defendant’s service.”
    Refused and exception by defendant.
    The court was requested to charge, viz: “That whether the employee knows or not that the best and safest kind of appliances are not used, still by entering upon a hazardous employment he assumes any risk resulting from ordinary structures used by his employer in carrying on its business, - and proper for that purpose.”
    
      The court replied, ££I cannot charge in that language; I have charged upon that subject, and I leave it as I have already charged.”
    Exception to the refusal and to the charge as made.
    The defendant requested the court to charge “that proper switches do not mean the latest- and most improved, kind.”.
    The court replied, viz.: “ I charge that they do not necessarily mean the latest and most improved.”
    There was an exception to'the refusal and to the modification.
    The defendant requested the court to charge, viz.: “ And that the company were not bound to use the Point switch or the Cook switch in the place of the Wharton switch or any other switch that they had in use.”
    The court replied, viz.: “I leave it as a question of fact
    for the jury as to whether it was necessary, in order to furnish a reasonably safe and proper road-bed, track and structure at this point where the Wharton switch was, to use any one or more of these switches. I leave it to the jury, and do not hold that they are bound to or that they are not.”
    Exception to refusal and to charge as given.
    The defendant requested a charge, viz.: “That the defendant was not bound to furnish a switch which would safely conduct the train leaving track No. 2 to and upon track No. 1 in case the switchman negligently left the switch open on No. 2.”
    The court replied: “ I leave that question to the jury. I do not charge that they were bound to. ”
    Exception to the refusal, and also “to the leaving of that question to the jury.”
    Later on the defendant requested the court to charge “that the defendant was not bound to furnish a switch which would safely conduct'the train leaving track No. 2’ to and upon track No. 1, in case the switchman negligently left the switch open on No. 2.”
    The court then replied: “I think I will charge that—that it was not bound to. I will charge that.”
    
      William Q. Tracy, for app’lt; Louis Marshall, for resp’t.
   Hardin, P. J.

When the plaintiff was injured on May 10, 1880, he was in the employ of the defendant as a brakeman upon an express train, approaching St. Johnsville from the east, at 5:03 p. M., and it was not expected that the train should stop at that station, but the engineer failed to look and discover by the signal given by the target that there was an open switch near the station and to apply his brakes and stop the train. Schram, the switchman, had left the switch open. The train was derailed and the plaintiff injured.

It was apparent at the trial that the engineer and Schram were negligent, but the court told the jury that the plaintiff could not recover as he was a co-servant, if their negligence solely caused the injtiry. But he allowed other inquiries to be made as" to whether the defendant had not itself been guilty of negligence and the jury to find that the accident 1 ‘ would not have occurred if it had not been for the negligence of the defendant itself.” Cone v. D. L. and W., 81 N. Y., 206.

The switch, which was left open by Schram, had been in use for the purpose of passing trains from the north side of track No. 2, on which' plaintiff’s train was running westwardly, to the southerly side of track No. 2. It had served the purpose for which it was designed, and safely carried trains across. For all the ordinary and usual purposes it had proved and appeared to bean adequate “instrumentality.”

The court left it to the jury to say whether it was a proper and suitable instrumentality and whether it was not the proper and suitable instrumentality, and whether it was not the duty of the company to have a different one, one that would serve the purpose of meeting all exigencies brought about by the negligence of two employees of the defendant, who were co-servants of the plaintiff. Primarily the negligence of the engineer, and proximately the negligence of Schram, the switchman, in leaving the switch open, carried the train off of the track No. 2 and produced the derailment which injured the plaintiff.

If the stringent exaction of the rule which defendant is under in regard to passengers were applicable, the theory of the plaintiff might be proper. 19 N. Y., 127; Hedgeman v. The Western R. R. Co., 16 Barb., 353; S. C., affirmed, 3 Kernan, 9.

But a'different rule obtains when the injured party is an employee who, by his contract of employment, takes upon himself the risks caused by the negligence of his co-employees and thez usual risks incident to the hazardous employment in which he engages.

The pivotal question upon this branch of the case turns upon the solution of the question as to whether the defendant was negligent in not providing a safety switch, a trailing switch, or such a contrivance in addition to the ordinary cross-over as would guard against the exigency which came about by reason of the neglect of the engineer and Schram. the switchman. That question seems to be determined adverse to the plaintiff by the case of Salters v. Del. and H. Co. (3 Hun, 338). It was said in that case that “a railroad company is not bound to employ mechanical appliances to protect one servant from injury liable to result from the negligence of another.”

The negligence asserted was the omission of the defendant to have a target switch, and Landon, J., said: “The switch was not open in consequence of any defect in the construction or for want of proper repair. It was an adequate and sufficient switch, so far as the adjustment of the tracks to each other was concerned, and that seemed to be the chief office of a switch. It was a common switch.” In that case it was held error to leave it to a jury to say whether defendant was not guilty of negligence “for not getting a target switch.”

Apparently the court in the case before us went beyond the rules laid down in that and other adjudged cases in the charge as given and the refusals made.

Appellant’s learned counsel cites us to Smith v. N. Y. and H. R. R. R. Co. (19 N. Y., 127), but it does not apply. Selden, J., said: “As between the deceased and defendants no such relation as that of master and servant existed. The question * * * is the same as if deceased had

been a passenger upon the train to which the accident occurred.” That case followed the" rule laid down in Hegeman v. The W. R. R. Co. (16 Barb., 353, and affirmed in 3 Kernan, 9) to the effect that “all inventions and improvements known” to defendant which will contribute materially “to the safety of their passengers, whenever the utility of such improvement has been thoroughly tested and demonstrated,” must be used. Smith v. R. R. Co., supra, p. 133.

The case of Kirkpatrick v. R. R. Co. (19 N. Y., 240) was one where the engine in use was defective and by reason of the defect the explosion took place which killed the fireman, whose representative brought suit. Nor does Pantzar v. Tilley Foster Co. (99 N. Y., 368) apply, as that was a case where a dangerous overhanging rock fell and caused an injury, and was clearly a case of want of ordinary care and prudence on the part of the master.

Stringham v. Stewart (100 N. Y., 516) was a case of a dangerous and defective machine, or an elevator which fell for want of. proper safety appliances while being operated by the plaintiff.

Probst v. Delamater (100 N. Y., 266) was a case where a cable used to haul in connection with a derrick and there was an injury, and the jury found, that the cable was not safe and secure, and there was no evidence of any care in selecting the cable, and a verdict was, therefore, sustained in favor of plaintiff.

In Ellis v. The N. Y. and E. R. R. Co. (95 N. Y., 546) the buffers were defective and failed to perform the duty which they were provided for, and, therefore, a recovery was sustained. That case was distinguished by Danforth, J., from Salters v. D. and H. C. Co., supra.

Employers are not bound to insure against accidents.. “In the case of employers they are only obliged to provide appliances which are safe so long as used without negligence. The employee takes the risk .of danger from negligence of his co-employee.” Burke v. Witherbee, 98 N. Y., 562; Rummell v. Dilworth, 3 East. Rep., 820; Salters v. D. and H. C. Co., supra; Piper v. R. R. Co., 1 T. & Cook, 290.

In the case last cited, Boardman, J., remarked, viz.: “If a common switch is properly cared for it is as safe as any other.” See also Bajus v. S. B. and N. Y. R. R. Co., 25 Wk. Dig., 5; Randall v. B. and O. R. R. Co., 109 U. S., 478; Sammon v. The Central, 62 N. Y., 255; Gage v. D., L. and W. R. R. Co., 14 Hun, 447.

Between employer and employee the law does not require the safest appliances or instruments, nor does it fix a liability upon the employer “for the failure to discard” those which are not safest for every exceptional exigency. Thompson on Neg., 9S3.

It may not be left to the jury to say what switches, what patented article or contrivance shall be used by a railroad company in order to escape liability from injury to an employee caused by the negligence of a co-employee.

A new trial should be ordered.

Judgment and order reversed and a new trial ordered, with costs to abide the event.

Boardman and Eollett, JJ., concur.  