
    Maria Keating, as Administratrix, etc., of John Keating, Deceased, Respondent, v. Manhattan Railway Company, Appellant.
    First Department,
    December 30, 1905.
    Negligence — death, of switchtender struck, by engine — rules of defendant, when sufficient — engineer as fellow-servant—contributory negligence.
    The plaintiff’s intestate was employed by the defendant to sweep out and clean . switches on a certain portion of defendant’s track, While performing, his'duty at a terminus he was struck and killed by the defendant’s engine which was switching tb a track down which the intestate had an unimpeded view and. which he knew to be used for switching. The only negligence of the defendant sought to’be proved on trial was the failure of the defendant to make and • promulgate rules that were sufficient for the protection of men in its employ.
    
      Held, that as defendant’s rules required engineers to use special care in coupling and shifting cars to avoid injuring trainmen and that trains were required not to exceed six miles per 'hour in rounding curves arid crossing switches, the rules were sufficient for the protection of one employed to clean out switches;
    That as an engineer running without a conductor was charged by the rules with the duties of a coiiductor, he was bound by those portions of the rules known as train rules; ' •
    That evidence' offered by the plaintiff that-the engine was exceeding the speed required by the rules'went only to the negligence of a fellow-servant for which the defendant was not. liable ;
    
      That as the intestate had been employed in said duties for a number of years and had worked at the place in question for over a month and the engine was in full view, with nothing to obstruct his seeing it in time to have stepped from the track, he was guilty of contributory negligence.
    Patterson, J., dissented.
    Appeal by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of February, 1905, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 17th day of February, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. McIntyre, for the appellant.
    
      Reno R. Billington, for the respondent.
   Ingraham, J.:

The plaintiff’s intestate was in the employ of the defendant, and it was his duty to sweep out certain switches upon the defendant’s tracks, to keep cinders and ashes from accumulating upon the switches and to keep them in working order. lie was required to perform this duty at the end of the defendant’s road between One Hundred and Thirtieth and One Hundred and Fortieth streets. It was also his duty to inspect these switches every day and in bad ' weather tw.o or three times a day. He had been employed' by the defendant for several years and at this particular work for some weeks. On the 11th of February, 1902, while engaged in working on the track of the defendant’s road between One Hundred and Thirty-fifth and One Hundred and Thirty-sixth streets, he was run over by an engine operated by the defendant’s employees and killed. The complaint alleged that the defendant was negligent “ in that its servants and agents so operated said engine as to knock down, run over and kill the said John Keating, deceased, and that the defendant was also guilty of negligence in that it carelessly and wrongfully omitted to make and promulgate rules for the guidance and direction of its employees, which were sufficient for the protection of. men in its employ, and especially the men engaged as trackmen in sweeping and switching on its-tracks, and particularly the said .John Keating, deceased, who was so employed by defendant at the time he received said injuries, but on the contrary made and promulgated rules that were insufficient and improper, and by reason thereof the said John Keating, deceased, was injured as aforesaid and was killed thereby." That the defendant was also negligent in that it failed to provide a safe and proper place for the deceased, John Keating, to work, and also-in that it- failed to supply a safe or "proper means for the said John Keating, deceased, to escape injuries from- an approaching engine.”

TJpon the trial the plaintiff seems to have rested her case upon the failure of the defendant to make and promulgate rules that were sufficient for the protection of the-men in its employ; and the only question that the learned trial judge submitted to .the jury upon the question of the defendant’s negligence, was whether the rules and regulations introduced in evidence were sufficient fo.r the protection of its Employees. The accident happened near the termination of the defendant’s line of elevated railroad on Eighth avenue.. The motive power in use on defendant’s road at that time was locomotives. There were three tracks on the road.; two side, tracks were used for making up.regular trains while the middle track appears to have been used for locomotives. The method of making up the trains seems to have been as follows: When a train from downtown drew up to the station', the engine at. the head-.of the train was disconnected and then switched to a middle track and. run down to a position in front of the cars of the succeeding train; when the 'succeeding train drew into the station the engine was backed across the switch onto the main track and connected with the front car of the train about to proceed- downtown. The switches at that point in this yard .Were operated to allow this engine to -be switched from .the track on which the train had come uptown to the middle track, and' thence' again to the side track to enable it to connect with the train-that was to proceed downtown. It was the intestate’s duty to inspect these switches from one to three times'# day, to sweep them out and to keep them in proper order. According, to the plaintiff’s testimony, at the ■ time of the accident' 'the plaintiff’s intestate was working on the center track between the switches. A train dispatcher had signalled this engine to take its position to connect with the next train ; and he testified that he noticed this engíné come up at an excessive speed which he assumed at about eighteen miles an hour; that when the engine struck him the deceased was standing, his left side to the engine, with a broom, sweeping alongside of the track; that he must have been standing right on the rail, or close to the rail; that he heard no signal given by. the engineer. The witness was then handed a book of rules promulgated by the defendant, which had been introduced in evidence, and was asked whether there was any rule in the hook which regulates switchmen and yardmen while working as was deceased at-the time of the accident, and in answer to the question the witness said he did not know of any particular rule, but further stated that there was a rule which required engineers to run at a certain .rate of speed over switches and through the yards; that there was no bell on top of the engine.

The first question presented is whether the rules promulgated by the defendant were reasonably sufficient for the protection of its employees working on these tracks ? It is quite evident that if the defendant had promulgated sufficient and proper rules for the safety of its employees, and these were enforced by the officers of the road, there is no evidence justifying a finding that the defendant was negligent; aiid any negligence of the engineer or other employee was negligence of a - fellow-workman, for which the defendant was not responsible. The rules are stated to be “Rules and Regulations for the government of the operating officers and employees of the Manhattan Railway Co.” They provide that officers and employees must remember that, in accepting office or position in the service of the- company, they are bound thereby to Obey strictly the rules and regulations issued by their superior officers. Rule 12 provides that the regular compensation of employees covers all risks of and liability resulting from accident. Rule 18 provides that employees must familiarize themselves with the rules governing the department to which they belong; entrance into the service of the company implies acceptance of its rules and regulations. Rule 21 provides that disobedience of orders, violation of rules or neglect of duty will always be considered a sufficient cause for dismissal, but suspension from duty and pay may be substituted.

The rules then provide for the government of engineers. Rule 116 provides that they must use special care in coupling and shifting cars to avoid injuring the trainmen, and must always start and stop their trains cautiously, and without sudden jerking. . Rule 131 provides that they shall keep a constant lookout ahead when the engine is in motion, observe the position of all switches, and if there be semaphores or targets, see that they indicate that switches are properly adjusted. If wrong, the engine or train must be stopped at once.

Rules are then provided for the regulation of trains, which are entitled “ Train Rules.” ■ Rule 260 provides: Trains will not be allowed to exceed a speed of six (6) miles per hour in rounding sharp curves or crossing switches, and twelve (12) miles per hour on descending heavy grades.” Rule 261 provides that the maxima m speed must not exceed twenty-five miles per hour, but this will never be used while descending heavy grades, or while passing any switch or frog. Engineers and conductors will confine the speed of trains within the maximum and according to the rules. Rule 263 provides that care must be taken to control the speed of trains at stations, terminals, junctions, curves and crossings, particularly in foggy and stormy weather; all trains must come to a full stop at junctions before' crossing. Rule 267 provides that whenever an.engine is run over any portion of the road without a conductor, the engineer thereof will be regarded as conductor and will act accordingly. Rule 375 provides that every employee-must exercise constant care and watchfulness to prevent in jury to persons and property ; in every case of doubt take the safe side and run no risk. Rule 390 provides that successive short sounds of the whistle will be used as á danger warning to persons on the track and notifies the trainmen of danger ahead ; they will quickly aid in stopping the train.

The deceased was employed to perform work on the track and-switches, with trains constantly pasting. 'His duty "was confined to the examination of these switches one, two and three times a day, and cleaning them out when they became blocked from dust,, cinders or snow. Hot being' employed at. any particular place upon the track, it was obviously impracticable for the defendant to . provide a watchman to warn him of the approach of trains .if lie happened to he at a switch making his daily inspection. Hor can it be said that the .deféndant was bound to contemplate that an employee who had been many years in .its service, familiar with- the work . he liad to do, would need to be protected when inspecting switches and cleaning them out. It was not the case of a body of men set to work on a particular track where trains were constantly passing and whose work would prevent them from watching for the approach of trains, but a man charged with the duty of inspecting and examining the track and switches of the road. - The rules to which attention has been called would seem to be all that was practicable for the protection of men charged with the duty of inspecting and caring for the switches. The engineers were expressly required to use special care in coupling and shifting cars to> avoid injuring the trainmen, and trains were not to exceed six miles per hour in rounding curves or crossing switches. And the engineer was charged with the duty of a conductor when the engine was running over any -portion of the road without a conductor. Whether, technically speaking, an'engine alone-would be considered a train, the' object of this rule is apparent, and an engineer, reading it would certainly understand when he was running an engine alone and that he must obey these orders which were train 'rules.

■ We cannot see that any other rules could have been added which would have protected this deceased, and it is quite clear that if these ■rules had been obeyed and the engineer had confined the speed of his engine to six miles per hour and kept his engine in hand crossing this curve, and if the plaintiff’s testimony is true as to the cause of the accident, it would never have occurred.

If the testimony given by the plaintiff is true these rules were disobeyed by the engineer in running his engine at an excessive rate ■of speed over these switches and the accident was due to. his negligence, the negligence of a fellow-servant, for which the defendant was not responsible. I do not think, therefore, that there was any evidence that justified a submission of the question to the jury.

. If, however, I am wrong in this, it is apparent that there is no .evidence to justify thé finding that the deceased was free from con-' tributory negligence. He had been in the employ of the defendant for upward of nine years, and had been at work at this particu- ■ lar point about a month. His duty pertained to the track of the road, and it is evident that he must have been perfectly familiar with the management of the road and the method in whiclT'these trains were made up. He knew that engines were constantly crossing on this middle track. This engine in question came down in full view,' with nothing to obstruct his seeing it in time to'step from the track and avoid the -injury. There is: no evidence, to show why he did not see the engine, nor is.there any excuse given or any fact, from , which the jury could find that his attention was diverted so that he could not see the approaching engine. The danger'of being struck by an engine, provided he was upon the,track, was quite apparent,, and while' on the track engaged in.this work he Was charged' with' the caution a prudent man would exercise, and required to keep a watch for the engines as they went to and fro in maldng up the trains. But certainly a man standing upon, a track and "allowing himself to be run over-by an engine without taking any care to avoid suelvan accident, and with no possible excuse for his not seeing the approach of the engine, cannot be said to be fre.e from contributory ñegli- . gence. There was, 1 think, error in receiving expert testimony, but that need not be considered. I think, upon the whole case, there was no evidence which justified a finding that the defendant was negligent, or. that the ‘deceased Was free from Contributory negligence. "

The judgment and -order appealed from should, therefore^ be . reversed and a new trial ordered, with costs to the appellant to abide the event: . ' '

Laughlin and Clarke, JJ., concurred. ,

O’Brien, P. J. (concurring):

I concur on the ground that plaintiff did not sustain' the burden . of showing freedom from contributory negligence on the part of deceased.

Patterson, J., dissented.

Judgment and order reversed and new trial ordered, with costs’ to appellant to abide-event. ■  