Kelly v. Delaware, Lackawanna & Western Railroad , 103 N.Y.S. 1065 ( 1907 )

Chester J.:

While it is not-so stated in the record it is evident that the decision of the trial justice in dismissing the complaint was placed outlie ground that the accident was caused solely by the negligence of a coemployee. The respondent claims this, and the appellant concedes that the evidence shows that the collision was caused either by the negligence of the engineer of the leading engine on- the “ wild cat ” train in- not seeing the train on the track in front of -him or by the negligence of the crew of the train 61 in failing to send back a flagman the proper distance to warn the approaching “ wild eat ” train. Nevertheless it is apparent to us that if the case had been -submitted to the jury it could have found that the explosion which killed the decedent was caused partly by the negligence of a coemployee and partly by7 the negligence of the master. If the facts should be so established the plaintiff would be entitled to recover under the rule of law that where an injury to an employee is caused partly by the negligence of another employee and partly by that of the master the negligence of the coservant will not excuse the defendant from the- consequences -of its own fault. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 516; Strauss v. N. Y., N. H. & W. R. R. Co., 91 App. Div. 583)

The car in which the dynamite was loaded was furnished -by the master. It-was not a car equipped with air brakes, lia a train composed of over fifty7 cars, only nine" or ten of which were not so equipped, and the remainder of which- were so equipped, it is manifest that the" car of dynamite could not have been placed "in the middle of" the train, in - compliance with- defendant’s rule, without having a large part of the rear portion of the-train disconnected-ffonr the locomotive -in such a way that the air brakes upon such part could not have been utilized in controlling the train. The jury-could have found that the master, by providing this car for the transportation of dynamite, had put it beyond the power of its employees to comply -with its rule with respect to the - transportation of high explosives.

We think, therefore, that it was- for the jury to say as- matter of fact wlietlier the defendant used reasonable care in furnishing this car for the transportation, of this large quantity of dynamite, and Avhether it was a proper one for that purpose under the circumstances, and one which its employees could have placed in the train where its rule required. The case appears to be brought squarely within the rule laid down in Bernardi v. N. Y. C. & H. R. R. R. Co. (78 Hun, 454). There, as here, the appeal was from a judgment of dismissal of the complaint and the injury caused by the explosion of dynamite being transported on one of the defendant’s cars, and the court said: “ It was the duty of this defendant to exercise due care to provide proper cars and means for transporting this powerful explosive over its road, and it cannot escape liability for damages caused by the failure to exercise such care by delegating its, the master’s, duties to an employee of inferior grade who happened to be a co-laborer with the person injured.” It was a question there as to whether the explosion was caused by sparks from the locomotive coming in contact with dynamite being transported on a flat car, and the court said that.the jury might have found i: that the explosion was caused by the sparks from the locomotive, and they might have found that the defendant did not exercise due care to furnish safe means for the transportation of this explosive; * * • * and if it shall be found as a fact that the car used was unsafe and unfit for the transportation of this explosive, and that the defendant negligently permitted it to he used for that purpose, the plaintiff will be entitled to a verdict.”

We think on the authority of that case there was a question - for the jury, and that there should he a new trial.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Barker, P. J., not voting, not being a member of this court at the time this decision was handed down, and Cochrane, J., who dissented in an opinion.