Sutherland v. Troy & Boston Railroad , 11 N.Y. St. Rep. 841 ( 1887 )

Landon, J.:

The cases of Sheehan v. New York Central and Huason River Railroad Company (91 N. Y., 332), and Dana v. Same Defendant (92 id., 639), seem to require that this case should have been left to the jury to determine whether the defendant was guilty of any omission of duty in not taking additional precautions to bring the knowledge of its order to the conductor and engineer of train No. 1. Train No. 1, of which the plaintiffs intestate was engineer, was moving east behind time,' and ought to have been stopped and held at the Petersburgh Junction station until train No. 6, which was moving, west, should have met and passed it there. The men in chargeuf. train No. 1 did not know that train No. 6 was coming towards it on the same track. But the defendant, by its train dispatcher at Troy, did know the situation and the danger, and in order to avert it telegraphed to Johnson, the telegraph operator and acting station agent at Petersburgh Junction, to “ flag and hold train No. 1 for orders.” This dispatch was received and acknowledged by the operator, and he entered upon the execution of it. He put out the red flag in its proper place as a signal. ItwassufficienttostoptrainNo.l,if the operator had allowed the flag to remain there until train No. 1 came up to the station. But before ti’ain No. 1 came up from the west, train No. 2 came up to the station from the east and stopped there. To the understanding of Johnson, it stopped there in order to await the arrival and passing of. train No. 1. But while waiting there, train No. 2 received orders from Troy to move westward to Hoosick and meet train No. 1 there. It moved westward and met train No. 1 at Hoosick. To the understanding; of Johnson at Petersburgh Junction, there was no longer any need that train No. 1 should stop at his station; that the purpose for which train No. 1 should stop at Petersburgh Junction was accomplished by the train dispatcher when he gave orders for train No. 2 to1 meet train No. 1 at Hoosick. Johnson did not know that train No.. 6' was coming westward from Yermont towards his.station. He therefore1 took down the red flag; and train No. 1 passed the Petersburgh. Junction without warning, and without stopping, and crashed into-train No. 6 a mile or two beyond. Was Johnson careless in his execution of the order to “flag and hold train No. 1 for orders? ” We may concede it. He had no right to interpret the order as if it read “ hold train No. 1 for train No. 2,” but it may also be con. ceded that his misinterpretation was, under the circumstances, just that kind of a mistake which a very slight degree of negligence might cause. We can also see that a little additional caution on the part of the train dispatcher might have prevented the accident. Had the dispatcher sent an order to the conductor or engineer of train No. 1 to stop at Petersburgh Junction for orders, or for train •No. 6, then other minds and other agencies would have been set at work to avert the collision. Such a dispatch might have been sent to Hoosick, or, if sent, directed to the conductor and engineer of train No. 1, to- Johnson at Petersburgh Junction, it might have sufficed. ¥e do not say, as a matter of law, that it was, under the circumstances, the duty of the defendant, if practicable, to send the order to the men in charge of train No. •1 as well as to Johnson, but that it was proper to submit the question as one of fact to the jury whether this added precaution against mistake or neglect ought not to have been taken. In the Sheehcm and Dama cases, the operator at the station at Cayuga received from the train dispatcher the oder: “Hold No. 50 for orders.” No dispatch was sent to No. 50 itself. The operator, very probably misled by the fact that he knew train No. 61 was about to arrive at the station from a direction opposite to that in which train No. 50 was moving, told the conductor of No. 50 to hold his train for No. 61. The conductor did so, and when No. 61 had passed he moved train No. 50 forward and it collided with train No. 337. There the operator was guilty of the negligence, not reasonably chargeable to Johnson in this case, of not showing his dispatch to the conductor as he had an opportunity to do.

The court in those cases held that whether the company had failed in its duty by not taking additional precautions to secure obedience to its order “ to hold No. 50 for orders ” was a question for the jury. It pointed out the distinction between those cases and the ease of Slater v. Jewett (85 N. Y. 61). In the latter case the defendant had .taken all the precautions to secure obedience to his order that were ■practicable. He had provided rules, minute, explicit and efficient, and made them known to his servants, which, if observed and followed by all concerned, would bring personal notice to every one entitled to it. But one servant so violated the rules as to prevent the others from obtaining the notice which was necessary to avert disaster. In the Sheehcm and Dama cases, and as we think in this case,- it was a question of fact whether the methods adopted by ■the defendant were ample and explicit enough to bring, without the likelihood of mistake or miscarriage, the requisite notice to the servants most concerned, of the orders upon which them safety depended.

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

Learned, P. J., and Williams, J., concurred.

Judgment reversed, new trial granted, costs to abide event.