Opinion
May 6, 1908.
A.H. Cowie, for the appellant.
James E. Newell, for the respondent.
Plaintiff, a brakeman in the service of defendant, was at the time of his injury one of a train crew, employed in defendant's freight yard at De Witt. Brownell was the conductor in charge of the crew; and they were under his orders and subject to his general control as to the business in which the crew was then employed. The jury has found that plaintiff was injured by reason of the negligence of Brownell in directing the movement of the train in the operation of which the crew was then engaged. Plaintiff based and tried his action and has recovered verdict therein upon the theory that the negligence of Brownell, which caused the injury complained of, was under the provisions of chapter 657 of the Laws of 1906 (adding to Railroad Law [Laws of 1890, chap. 565], § 42a), known as the Barnes Act, the negligence of a vice-principal of defendant, for which under that act defendant is liable. The sole ground now urged by defendant's counsel as error for which it is claimed the judgment should be reversed, is that Brownell's negligent act was done, not in his capacity as vice-principal, but while acting simply as a coemployee, or under the immediate direction or control, for the time being, of plaintiff himself. In support of this position Guilmartin v. Solvay Process Co. ( 189 N.Y. 490) and Gallagher v. Newman (190 id. 444) are cited. We do not think defendant's position is well founded.
At the time plaintiff was injured he with the other members of the train crew was engaged in carrying out the instructions given by defendant's assistant yardmaster to shift the east fifteen cars of a string of seventeen from the track on which they were then standing and place them on another track. The locomotive had been attached to the east end of this string of cars and plaintiff was at the west end of the fifteenth car engaged in an attempt to uncouple it from the sixteenth car, which he had been directed to do by the conductor. Plaintiff made several ineffectual attempts to lift the pin which locked the coupling joining these two cars with the appliance at the end of the fifteenth car, and, as is usual when a pin sticks in this manner, the cars had been moved for short distances east and west on signal given by plaintiff in an attempt to loosen this pin. The position of the cars was such that the plaintiff could not signal the desired movement of the train to the engineman directly, and in passing the signals to the latter the conductor, who was two or three car lengths east of plaintiff and on the same side of the train as he, took them from plaintiff, passed them to another brakeman, stationed near the locomotive, who in turn repeated them to the engineman. It appears that there is a well-recognized rule in railway service that when operatives are engaged in making a cut or coupling of cars, signals for the movement of the cars are to be given only by the one who is making the cut or coupling, so that at this time no one but plaintiff could properly and safely give such signals, for he was the one in the place of danger. Plaintiff, not being able to lift the pin at the end of the fifteenth car, was directed by the conductor to get up on the car and pull the pin from the end of car sixteen. Finding the chain connecting the pin with the lever at the end of this latter car broken, he took hold of the broken chain, lifted the pin, and, as the cars separated at his signal, stepped from his position at the end of car sixteen to the sill of car fifteen. The cars separated a few feet, then stopped with a sudden jerk dislodging plaintiff's foothold on the car, and moving quickly to the west caught his foot between the bumpers of the cars as cars fifteen and sixteen came together, causing the injuries for which he has recovered the damages represented in the judgment in this action. The last movement of the train for which plaintiff had given his signal was towards the east, which separated the cars. The abrupt stoppage and change of direction of the moving cars were the result of, and wholly due to, a signal to that effect given by the conductor, of which concededly plaintiff had no knowledge or intimation. Plaintiff's injury was the direct result of giving this last signal.
The provisions of the statute under which plaintiff has recovered his judgment so far as important here are as follows: "In all actions against a railroad corporation * * * for personal injury to * * * any person, while in the employment of such corporation, * * * arising from the negligence of such corporation, * * * or of any of its * * * officers or employees, every employee * * * shall have the same rights and remedies for an injury * * * suffered by him from the act or omission of such corporation * * * or of its * * * officers or employees as are now allowed by law, and in addition to the liability now existing by law it shall be held in such actions that persons engaged in the service of any railroad corporation, foreign or domestic, * * * who are entrusted by such corporation * * * with the authority of superintendence, control or command of other persons in the employment of such corporation * * * or with the authority to direct or control any other employee in the performance of the duty of such employee, or who have, as a part of their duty, for the time being, physical control or direction of the movement of a signal, switch, locomotive engine, car, train or telegraph office, are vice-principals of such corporation * * * and are not fellow-servants of such injured * * * employee."
Whether the act of the conductor in giving the last signal for moving the train was within his sphere of action as vice-principal, or was a mere negligent performance of a detail of duty devolving upon him while temporarily acting as a subordinate or coemployee of plaintiff is, as has been said, the sole question presented for our determination.
Under the rule for the operation of cars, to which reference has already been made, no signal for the movement of the cars at that time should have been given by the conductor except when, and as, plaintiff directed. If plaintiff had himself given any signal at that time, which Brownell had either negligently misinterpreted or inaccurately repeated, a different question as to the quality of the negligent act would doubtless be presented, the decision of which may properly abide until it is directly presented for determination. But the signal given by the conductor, Brownell, while it was given for the purpose of directing, and being obeyed resulted in, the movement of the train by reason of which plaintiff was injured, was in fact an independent act of Brownell originating in an idea conceived and acted upon by him alone. This much is conceded by Brownell himself. What his particular idea, or purpose, was is not perhaps clear in view of the facts disclosed by the evidence, nor is its determination now necessary. He had authority to direct plaintiff as well as the other members of the crew in the performance of their duties at that time, which he had exercised just previous to the accident, in directing plaintiff to get upon the car and pull the pin. He also, as is conceded, had the general "control, or direction, of the movement" of the cars. This general control, or direction, had not departed from him even temporarily while plaintiff was making the cut. His negligence was in not obeying the rule to take signals for the movement of the cars at that time only from the plaintiff, and of his own initiative assuming to exercise his general authority to direct the movement of the cars. It was, therefore, under the statute to which we have referred the negligent act of a vice-principal for which defendant is liable.
All concurred, except McLENNAN, P.J., who dissented.
Judgment and order affirmed, with costs.