December 29, 1911.
James McCormick Mitchell, for the appellant.
Augustus Thibaudeau and Eugene M. Ashley, for the respondent.
The plaintiff, a young man nineteen and one-half years of age, in the employ of the defendant as an extra brakeman, jumped off the running board of an engine on which he was at work, about seven-thirty o'clock in the morning of September 18, 1909, in the vicinity of La Salle, in the county of Niagara, and under the direction of the engineer of the train, and he fell and was run over by the train and his leg was crushed so that it had to be amputated, and he charges that the defendant was responsible for his injuries.
The plaintiff had been reared on a farm until he was seventeen or eighteen years of age, and was then employed by the defendant in its roundhouse at Manchester, and his work consisted in blowing flues and running the turntable, and he had no experience in the operation of freight trains or in jumping on or off from them. In September, 1909, he applied to the yardmaster of the defendant at Manchester for the position of brakeman and was permitted, without compensation, to go on the through freight train from Manchester to Niagara Falls, about 110 miles, with a view of learning the business of freight brakeman. He was on the train during three trial trips. The engineer in control of this freight train was a man named Orr, and the plaintiff did but little work while on these trial trips, and the regular brakeman performed the work under the direction of the engineer. The plaintiff, however, was directed by the engineer once or twice during these trial trips to jump off the running board of the engine when it was in motion and when it was going slowly, and go back to the caboose on some errand to the conductor. After these trial trips he was employed as an extra brakeman, and at the time he received his injuries was on the first half of the fourth trip. Orr was the engineer all this time and he alone gave the orders to the plaintiff in the performance of his duties. The train was a through freight, containing thirty-five or thirty-six loaded box cars; and on the morning of the accident, before reaching tower 61 west of La Salle, the engineer was advised that there was a hot journal on the tender of his engine.
Tower 61 was at the east end of a long siding, and the next tower to the west was tower 61A, which was at the west end of this siding, and the distance between the two towers was about one mile. Upon receiving this information the engineer concluded he could not enter the siding at its easterly end, and so decided to pass beyond the westerly end of the siding and back in upon it and stop the fire in the hot journal. He was also induced to act in this way for the reason that an express train was following him from seven to ten minutes in the rear. He testified that his train was running at twenty-five or thirty miles an hour as it passed tower 61A and he then shut off the steam. Just as the engine had passed the westerly end of the siding he gave a direction to the plaintiff to go back to Rhodes, the conductor, and have him set out the "dope" pail in order that the plaintiff might pick it up and deliver it to the engineer to use in stopping the fire in the hot journal.
There is a controversy as to this direction. The plaintiff was in the cab on the opposite side and four or five feet distant from the engineer at the time the direction was given. The plaintiff testified that the engineer made his order as follows: "Drop off here and go back to the caboose and tell Rhodes to set out the dope pail — we are going to back up here and pack that box." The engineer's version of the direction is: "`Mooch back now; that journal is hot;' I says `mooch back and tell him when we slow down and get off and go back and tell the conductor when we get on the siding to set the dope pail out so we can pack that journal.'"
The plaintiff, understanding and believing that the direction called for immediate action, climbed down between the tender and the engine onto the running board, took hold of the rail with his right hand, looked carefully to see if there were any obstacles in the way, and observing that the ground was level, with nothing to interfere with his alighting, and believing that he could do so with safety, jumped off. He ran along a short distance, was thrown to the ground and injured in the manner above stated.
The few times when the plaintiff had, under the direction of the engineer, jumped from the train, it was going more slowly than on this occasion, although, as I have stated, he thought he was in no peril in jumping off. He had had very little experience in this business and had received no instructions whatever, either from the engineer or from the conductor, or from any one in fact, in regard to jumping off from the train. He had seen other brakemen do this frequently at the command of the engineer, although it does not appear that the train was running rapidly at any time the other brakemen were alighting from it. When the plaintiff alighted he pursued the same manner adopted by his coemployees in getting off the running board and precisely as he had done the two or three times he had jumped off before. He knew nothing of this siding. The freight train on which he had been riding had never gone upon it and he had no knowledge or information where it was located and did not realize that the train was to back upon it.
No one testified to the order given by the engineer, except these two men, the plaintiff and Orr, the engineer. The latter testified that he did not expect that the plaintiff would get down on the running board and jump off the train when it was running rapidly. He further says that by the expression "mooch back" he intended that the plaintiff would walk back on the top of these thirty-five or thirty-six cars and reach the caboose in that way. There is no hint that he ever explained to the plaintiff what the expression "mooch back" signified, and he does not seem to be very clear himself as to its signification; and the conductor is also in the dark as to the precise meaning of this forcible expression. Nor did he advise the plaintiff not to get on the running board.
The engineer testified that the train at this time was going from twenty-five to thirty miles an hour and that it had not slacked at all since he shut off the steam at tower 61A, which is entirely credible, for the distance could only have been two or three rods, for when Reynolds was found after the accident he was lying only eight or ten car lengths west of tower 61A. In fact the engineer testified that the train had not begun to lessen its speed for two minutes after the direction he gave to Reynolds, which, at the speed he said the train was going, would carry it along nearly a mile. However, when this was made plain to him he admitted he was confused as to the time and said it probably was not more than one minute, or even less than that.
It would seem, therefore, as if this engineer was negligent in giving this instruction to the inexperienced brakeman. He knew the plaintiff's lack of experience, and yet, according to his own version, he gave a command which, he says, required him to walk along back on the top of these cars when the train was going twenty-five or thirty miles an hour; and the plaintiff testified, and it is not disputed, that he had never walked back on the top of the cars.
Again, if the instruction meant that he was to get down on the running board and the train was running at the speed claimed by the engineer, the latter showed lack of judgment and was negligent in giving this direction to the inexperienced boy.
It becomes important, therefore, to consider the evidence bearing upon the rate of speed at which this train was running at the time the command was given and at the time the plaintiff jumped from the running board. The plaintiff gave no evidence upon this subject. He said he did not know how fast it was going, except he believed that he could jump off without imperiling his safety.
Kerchue, the section foreman, who was standing in front of the tool house, and about a mile from where the plaintiff was injured, testified that the train was going about thirty miles an hour when it passed him.
Biggar, who was the signalman at tower 61, testified that it passed that tower at thirty-five miles an hour.
Ginther, who was the rear brakeman and had been for seven years employed in that capacity, testified that as it passed tower 61A it was going twenty-five miles an hour, and that when it stopped it was eight or nine car lengths from that tower. After a somewhat extended cross-examination his attention was called to the fact by the court that he had not given the speed of the train eight or nine car lengths west of tower 61A. Thereupon the counsel for the defendant took him in hand and asked him at what speed the train was running at that point, which was at the point of the accident, and he answered: "Why, the train was running, well it was slowed down then to about ten miles an hour;" and he was asked by the counsel if that was his best judgment and he answered: "Yes, sir." This rear brakeman had testified that the train slowed down as it approached La Salle. In other words, it had commenced to slow down before it reached tower 61, or more than a mile east of the order given by the engineer to the plaintiff.
Rhodes, the conductor, who was in the caboose, says the train was going from twenty to twenty-five miles an hour when the plaintiff was getting down toward the front of the train, although he also says that the slack was being taken up at tower 61, indicating that the train was coming to a stop.
Sayer, the fireman, testified that the train was going twenty-five miles an hour when the direction was given to the plaintiff.
On behalf of the plaintiff on rebuttal Linderbolt was called as a witness. He had been a locomotive engineer in the employ of the defendant for sixteen years and he had made this run very frequently. He testified that this loaded train could not have been stopped, if running at the speed of twenty or twenty-five miles an hour, in less than two or three train lengths.
I am of the opinion that the physical facts indicate that the employees of the defendant have given an excessive rate of speed to this train. In the first place it is to be borne in mind that the engineer intended to back on the siding and he was influenced in doing this by two things: First, the hot journal; and, second, the overpowering necessity of avoiding the express train, which was following him only a few minutes in the rear. In order to accomplish this purpose it would be expected that he would stop his train as soon as possible after the caboose had passed the west end of this siding. He testified, however, that he did not even shut off the steam until he reached tower 61A, which was close to this end of the siding, and that there was no diminution in the speed of his train when the plaintiff jumped off. He further testified that he did not apply the emergency brake or make any effort to check the train other than as already stated until he was advised by the fireman that the plaintiff had been hurt. He then applied the emergency brake, using his utmost effort to stop the train, and with all that effort the caboose passed the point where the plaintiff was injured several car lengths. It seems plain, therefore, that if there had been no unusual attempt made by the engineer in response to the information from the fireman that the plaintiff had been injured, the train would have gone much farther toward the west. It appears to be reasonable that the witnesses who testified that the engineer caused the train to begin to slack its speed a mile or more back at tower 61 were testifying to the truth, for that course seems to be consistent with good railroading, in view of the fact that the engineer intended to back on the siding, both to avoid the express train and to stop the fire in the journal. Again, as testified to by the engineer Linderbolt, it does not seem possible that if this heavily-loaded freight train was going a slight down grade at twenty-five miles an hour when the plaintiff dropped off the running board, it could have been stopped in its length or 1,500 feet.
So I think it was a fair question of fact as to the speed of this train; and we then come down to the other questions: First, was the plaintiff guilty of contributory negligence as matter of law in jumping off from this train, assuming that it was going at the rate of ten miles an hour?
There are several circumstances which must be considered upon this branch of the case. In the first place we have his inexperience; that he did not fully apprehend the danger to him in jumping from the train going at that speed. An experienced brakeman, who had frequently jumped off from the running board, could have made this jump probably in safety.
Another thing essential to consider in passing upon his conduct is the command that was given by the engineer. He knew that the engineer was a man of experience, and he was entitled to accept the judgment of his superior upon that subject. As he reasonably construed the command which was given to him, it meant that he was to alight immediately, and that it was important that he proceed to the rear of the train at once. The direction was that he "drop off here," and the engineer testified that he gave the order in a very loud tone of voice — as he expressed it, he "yelled" loudly, which added to the emphasis and the importance of the command it was his duty to perform. While that direction did not relieve him from exercising prudence and caution, it did add the weight of the engineer's experience, which inevitably would influence his action in some measure. If the engineer said it was safe he might reasonably think he was in no peril in jumping off.
In Northern Pacific Railroad v. Egeland ( 163 U.S. 93) the plaintiff was a common laborer, a man of mature age, and he with other coemployees was directed to jump off at a station when the train was moving at four miles an hour. The plaintiff jumped from the platform about a foot lower than the car step and was injured. The United States Supreme Court held that he was not guilty of contributory negligence as matter of law; and in its opinion (at p. 98) the court states the rule as follows: "If plaintiff reasonably thought he could with safety obey the order by taking care and jumping carefully, and if because of the order he did jump, the jury ought to be at liberty to say whether under such circumstances he was or was not guilty of negligence. If the train had been going at the rate of thirty, or even fifteen, miles per hour, the chance of injury resulting from a jump would have been so great that plaintiff would probably have obeyed such an order at his own risk."
So in Texas Central R.R. Co. v. Hicks ( 59 S.W. Rep. 1125) the plaintiff, an inexperienced section hand, was directed by the section foreman to alight from a train running from seven to twelve miles an hour, and obeyed the instruction. The command was that he "get off," which he assumed was imperative, and the court in considering his conduct said (at p. 1126): "If so, he had the right to assume that the master, the foreman, knew the danger, and that he would not order him to perform an act that he could not safely perform, and we cannot say, in the light of the evidence, that his act in getting off was so obviously dangerous as to preclude the recovery."
So also in Ballard v. Chicago, R.I. P. Ry. Co. ( 51 Mo. App. 453), where there was a similar direction, the court said (at p. 459): "If the plaintiff jumped from defendant's train while in motion in obedience to the order of defendant's boss, and in doing so he was hurt, this would not bar his right of recovery, unless the danger to be incurred in so obeying the order of defendant's boss was so glaring that a reasonably prudent person would not have undertaken it."
The appellant's counsel has cited quite a large number of cases in this State to the effect that where the plaintiff jumped on or off a moving train he was held to be chargeable with contributory negligence. A few of these I will advert to.
In Solomon v. Manhattan R. Co. ( 103 N.Y. 437) the gate of the railroad was closed and the plaintiff's intestate, a passenger, attempted to get on board and was injured and, of course, the court held he was guilty of contributory negligence.
In Hunter v. C. S.V.R.R. Co. ( 112 N.Y. 371, and again in 126 id. 18) the plaintiff's intestate a passenger, was attempting to board a moving train and contributory negligence was imputed to him.
In Mearns v. Central R.R. Co. of N.J. ( 163 N.Y. 108) the plaintiff stepped off a moving train without any intimation that he should do so or that the train had stopped, and he was held to be careless.
In each of these cases cited by the appellant's counsel, so far as I have examined, the plaintiff or decedent was a passenger who was not acting in pursuance of any direction of any employee of the defendant railroad company. As the evidence here shows, the brakemen were frequently in the habit of jumping off from moving trains, and it is within the knowledge of us all that such action is very common among railroad employees. They not only do this voluntarily, but also in compliance with specific directions of their superiors, and that was so in this instance.
In the second place, it is claimed that the engineer was not a vice-principal within the Barnes Act, so called. Chapter 657 of the Laws of 1906 (Adding to Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 42a), and which is the so-called Barnes Act, in referring to the kind of officers or employees who are within its provisions, adds: "who are entrusted by such corporation or receiver, with the authority of superintendence, control or command of other persons in the employment of such corporation or receiver, 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 or receiver, and are not fellow-servants of such injured or deceased employee."
It seems to me, without the citation of any authority, that an engineer in charge of a train and who has in his care the head brakeman and also under his direction the fireman, must necessarily be exercising "superintendence, control or command" over these people. He must also have "physical control or direction" of the engine which he is operating and of the signals which he gives, so that within the express verbiage of the statute I think he was a vice-principal.
The rules offered in evidence, while they vest the conductor with general authority in the management of the train, do not assume to deprive the engineer of the physical control of his engine. The conductor was in the rear of the train in the caboose. In an emergency, such as existed here, the engineer could not communicate with the conductor and have him give the command to the plaintiff. There are a large number of sections in the rules of the defendant defining the authority of an engineman, running from 864 to 875, quoted in the respondent's brief, and he is vested with much control in the management of the engine and of the train.
This statute has often been construed as bearing upon the authority of the engineer of a train, and in every case, so far as my research has extended, he has been held to be a vice-principal within the purview of the act. ( Breed v. Lehigh Valley R.R. Co., 131 App. Div. 492; O'Brien v. Erie R.R. Co., 139 id. 291; Schradin v. N.Y.C. H.R.R.R. Co., 124 id. 705; Simons v. Brooklyn Heights R.R. Co., 142 id. 36.)
And while that question was not up in Hallock v. N.Y., O. W.R. Co. ( 197 N.Y. 450), the trend of the opinion is in support of that proposition.
A liberal interpretation is given to the act. ( Laplaca v. L.S. M.S.R. Co., 127 App. Div. 843; affd., 194 N.Y. 562; Inglese v. N.Y., N.H. H.R.R. Co., 133 App. Div. 193.)
My conclusion is that the engineer was a vice-principal, and, therefore, the alter ago of the defendant; that the command which he gave to this inexperienced plaintiff was negligence in view of the circumstances; that the train was not running more than ten miles an hour; that the plaintiff was not guilty of contributory negligence as matter of law in obeying the direction of his superior and jumping off the running board, believing as he did that he could do so with safety, and that the defendant is, therefore, liable.
The judgment should be affirmed.
All concurred, except WILLIAMS, J., who dissented.
Judgment and order affirmed, with costs.