Schoonmaker v. Erie Railroad ( 1908 )

Woodward, J.:

The complaint in this action, which is to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant, alleges that the defendant is a domestic railroad corporation, and that the plaintiff was employed as an engineer of such corporation upon an engine in the corporation’s yard at Port Jervis, and that while so employed he sustained the injuries complained of, without fault on his part, by reason of the fact that one Roberts, an engineer upon another engine, ran his train into the yard at a high rate of speed, colliding with the engine on which the plaintiff was stationed. The negligence alleged against the defendant is that Roberts, to the knowledge of the defendant, was an incompetent man to be intrusted with the position of engineer, by reason of disease which was likely to attack him at any time, and which rendered him temporarily unconscious, dazed and stupid, and that the accident occurred because the said Roberts was at the time of this accident “so suffering, overcome and incapable.” Upon the trial of the action the plaintiff produced evidence to show that on the 8th day of October, 1904, Roberts was on the engine making a regular run from Newburgh to Port Jervis; that at Guymard, a station about eight miles from Port Jervis, the whistle was sounded four times for the crossing, and the airbrakes were applied for the purpose of testing them, the roadway being at a steep grade all the way to Port Jervis ; that at the next crossing the engineer gave no signal, and rang no bell (though as to the latter it is probably a duty belonging to the fireman), and this was true at the Black Rock crossing; that at Wood Pit, the beginning of the'yard limit, where tlie rule requires trains to slow down to six miles an hour, there was no cheeking of the speed, and no signals were given; that entering the yard the train increased in speed to fifty or sixty miles an hour, running past a danger signal and colliding with plaintiff’s engine, which stood upon the track with a headlight burning, facing the approaching train, in plain view for nearly half a mile; that ¡Roberta made no move to stop the train, though sitting in his proper place, with his hand upon the airbrake lever, until the fireman, discovering the danger, spoke to him, when he applied the air, but too late to avoid the collision. After the collision Roberts remained seated in the cab for a few moments, made an effort to start the injector, but was told that the pipe had been broken. He then made a misstatement, it is claimed, as to his fireman’s name, and got down on to the ground, walked around in front of his engine, and then went across lots home. The plaintiff then adduced evidence tending to show that Roberts, during a period of fourteen years, during the most of which time he had been in the employ of the defendant, had on seven or eight different occasions had fainting spells or fits, in which he was temporarily unconscious, and the theory of the plaintiff is that he had one of these fits on the evening of October eighth, resulting in the accident, and that the defendant is liable for the injuries because of his employment. The learned court charged the jury that there was no evidence to show any direct notice of the alleged epileptic fits to any one authorized to employ or discharge Roberts, but that if the fact that he had such fits Avas so much a matter of common knowledge that the defendant, in the exercise of reasonable care in supervising its employees Avould, or should have knoAvn of it, tlie defendant might be held liable for the negligence. At the same time the court charged that if the accident Avas not due to the fact that Roberts was, at the time of the accident, suffering from one of these attacks, the plaintiff could not recover, and this charge, as finally given, does not appear to be questioned. By agreement of the parties the motions to dismiss Avere reserved, and the jury found in favor of the plaintiff in the sum of $15,000, whereupon the learned court set the verdict aside and granted the motion to dismiss, holding, in an opinion, that there was no evidence to show that Roberts was, at the time of the accident or during that day, afflicted with one of these tits, but that the contrary appears. The plaintiff appeals from the order.

From an examination of the evidence in this case we are unable to discover how the court could have reached any other conclusion. It is true that there were some admissions and some suggestions in the evidence that a man with epileptic fits might have permitted his train to run down this grade without giving signals, etc., but this would be just as true if Roberts had fallen asleep, and he said, in a statement at the time of the accident, that he did take a nap on this evening, and in his testimony, taken by commission, he says he did not have a fit on this occasion. His fireman, who sat opposite him in the cab four or five feet away during the entire run, and who looked at him from time to time, testifies that he saw none of the symptoms which are described as belonging to epileptic fits or to the class of fits which the witnesses describe, such as spasmodic movements of the hands and arms, falling forward, frothing at the mouth, etc., but that, on the contrary, he sat upon the seat with his hand upon the air lever, looking to the front, in just the position that he would occupy in the proper discharge of his duties. The train is described as running into the yard at Port Jervis at fifty to sixty miles an hour, and if Roberts had had an epileptic fit rendering him unconscious, it is contrary to all reason that he could have maintained his position, especially when the shock of the collision occurred, or that his fireman would not have noticed some irregularity in his actions. It is possible, of course, that he may have had such a fit, but it is highly improbable, and there is certainly no evidence which would warrant the jury in finding that the accident was due to such a fit; it would be the merest guesswork, and we have no right to take property from an individual or a corporation merely upon a guess.

• Reaching this conclusion makes it unnecessary to go into the other questions presented upon this appeal. The charge of the court, as it related to the question of notice to the defendant of the condition of Roberts, was probably well up to the limit, but upon the question of evidence to show the proximate cause of the accident, we are fully persuaded that the case was lacking and that the order setting aside the verdict and dismissing the complaint was fully justified.

The order appealed from should be affirmed, with costs.

Jenks and Rich, JJ., concurred; Gaynor, J., read for reversal, with whom Hooker, J., concurred.