Opinion
Argued April 3, 1925
Decided May 5, 1925
Appeal from the Supreme Court, Appellate Division, Second Department.
James W. Carpenter, Madison G. Gonterman and John M. Gibbons for appellant.
L. Lloyd Brown and Harry Wolff for respondents.
Plaintiffs' intestate, a trackwalker, was struck and killed by a locomotive while he was inspecting or repairing tracks. The locomotive, which had no cars attached to it, was running backwards, and a heavy fog, together with steam from a passing train, so obscured the vision of the engineer and fireman that they were unable to see the tracks for more than ten or fifteen feet ahead. The decedent was hardly discovered before the engine was upon him, though its speed was not rapid, from ten to twenty miles an hour. About ten car lengths back a whistle had been blown. An automatic bell was ringing continuously, for so the fireman, who was a witness for the plaintiffs, testifies, and without substantial contradiction. We find nothing to show that any other precaution would have been either customary or effective.
In this situation the court was asked to charge that "no negligence may be predicated upon the operation of the locomotive backwards." The request was refused with the statement, "I will leave that as a question of fact to the jury."
We think the ruling is error which vitiates the verdict. The operation of a locomotive backwards is not negligence. It may often be indispensable if a road is to be run at all. The jury should have been told that there was nothing in the direction of the movement to charge the company with fault.
The plaintiffs argue that the form of the special verdict makes the error unsubstantial. We think it fails of that effect. The verdict states that the negligent act was "backing engine without proper precautions." Evidently the backward movement entered into the conclusion at least as a component factor. We cannot say what precautions the jury had in mind. If any were omitted, our scrutiny of this record does not tell us what they are. The conclusion is hardly to be avoided that some extraordinary precautions of the jury's own contriving were thought of as essential to counteract initial fault in moving back instead of forward.
"We are not at liberty to reverse for failure of proof" the judgment "which the Appellate Division has unanimously affirmed (Const. art. VI, § 9). We may still look into the evidence, however, to help us to a conclusion whether errors in the charge are harmless or substantial" ( Matter of Santrucek, 239 N.Y. 59, 62).
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted as against the defendant, the New York, New Haven and Hartford Railroad Company, with costs to abide the event.
CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; HISCOCK, Ch. J., not sitting.
Judgments reversed, etc.