Opinion
Argued May 27, 1874
Decided June 9, 1874
George W. Miller for the appellant.
Samuel Hand and Matthew Hale for the respondent.
In Flike, Administrator, v. The Boston and Albany Railroad Company ( 53 N.Y., 549), which was also an action against the defendant in this action to recover damages for the defendant's negligence in causing the death of the plaintiff's intestate, a fireman on the same train on which Sprong, the plaintiff's intestate in this action, was, and who was killed by the same collision, two questions, also involved in this case, were decided: First, that the evidence justified the jury in finding that the corporation, defendant, was guilty of negligence in sending out the first train with an insufficient number of brakemen; and, second, that although the co-servants of the deceased may have been guilty of negligence which contributed to produce the injury, that fact did not exempt the defendant from liability, assuming that the jury should find that there was negligence on the part of the corporation in the respect mentioned, without which the injury complained of would not have happened. (See, also, Cayzer v. Taylor, 10 Gray, 274.)
The only question presented in this case, not involved in the case of Flike, Administrator, etc., is that of contributory negligence on the part of Sprong, the plaintiff's intestate, which, it is claimed, consists in the fact that at the time of the injury he was upon the engine, and not at his post of duty. The persons upon the engine were, under the circumstances of this collision, exposed thereby to greater peril and danger there than if they had been elsewhere upon the train, and it is probable, from the evidence, that if Sprong had been upon the cars, near the brakes, and not upon the engine, he would have escaped uninjured. But it is not claimed that if Sprong had been at the brake he could have prevented or diminished the force of the collision. It was conceded substantially by the plaintiff's counsel, upon the argument, that if Sprong was, at the time of the injury, without right and in violation of his duty, upon the engine, he was chargeable with negligence which would defeat the action. The judge, at the trial, submitted it to the jury to find whether the deceased was rightfully upon the engine when the injury happened, and, in being there, was acting in the line of his duty; and this issue having been found for the plaintiff, the finding is conclusive, if the evidence justified it, or, unless the proof to the contrary was so strong and convincing that although there might be a scintilla of evidence in favor of the verdict, no reasonable mind could doubt or hesitate in reaching an opposite conclusion.
This court does not review the finding of a jury upon questions of fact, which appear by the evidence to have been controverted upon the trial, where the controversy was actual and substantial, and not colorable and formal merely.
We cannot say that there was no evidence which justified the jury in finding for the plaintiff upon this issue. The position of Sprong was that of head brakeman, but it does not appear that his duties were defined in the contract of employment. The name of brakeman indicates the general nature of his duty; but it cannot be assumed, without evidence, that it required him at all times to be at the brake, or at any particular place upon the train, or that he could not be upon the engine without a violation of duty.
The printed rules introduced in evidence by the defendant provide that no brakeman shall be allowed to leave his post, or be in a car when the train is running; and the duty is enjoined upon the conductor to see that brakemen are at their posts. What the post of the brakeman is is not defined by the rules. Copies of them were furnished to conductors and enginemen but not to the brakemen, and there is no evidence that they were at any time seen by Sprong, or that he had notice of their contents. The non-observance by Sprong of these rules was not a violation by him of his duty unless he was apprised of them.
The proof shows that the head brakeman is subordinate to and under the control of the conductor and engineman. His duties frequently require him to go upon the engine. At the time of the collision Sprong was there, not engaged in any service which required his presence, nor was he there by direction of the engineman or conductor. But several witnesses testify that it was the usual custom for the head brakeman to ride upon the engine; and an engineer who had been for eight years upon the road states that this was the uniform practice, and adds: "It is usually conceded that a man (there) can get to the brake." Sprong was authorized to infer from the long continued practice of persons in the defendant's employment, similarly situated, to ride upon the engine, and from the acquiescence of his superiors in that practice, that it was allowed.
It is probable that a rule prohibiting the practice would be a proper regulation and a protection against accidents; but Sprong, in the absence of instructions to the contrary, cannot, in law, be charged with negligence or a violation of duty in doing what was in conformity with the usual custom of brakemen, sanctioned by the chief officers and agents of the corporation. The evidence that Rockafeller, the head conductor of freight trains, and Chapin, the assistant superintendent, saw head brakemen from time to time riding upon the engine, and made no objection, was in the view suggested competent.
The judgment should be affirmed.
All concur, except GROVER, J., not voting.
FOLGER, J., concurred on ground that the case of Flike v. Boston and Albany Railroad Company ( 53 N.Y., 549) had settled that defendant was negligent, and that, under the testimony, the question of contributory negligence, on the part of deceased, was one for the jury.
Judgment affirmed.