Coppins v. New York Central & Hudson River Railroad , 6 N.Y. St. Rep. 572 ( 1887 )

IIardin, P. J.:

When the plaintiff was injured on May 10, 1880, he was in the employ of the defendant as a brakeinan upon an express train approaching St. Johnsville from the .east at 5.03 p. m., and it was not expected that the train would stop at that station, but the engineer failed to look and discover by the signal given by the target that there was an open switch near the station and to apply his brakes and stop the train. Schram, the switchman, had left the switch open. The train was derailed and the plaintiff injured.

It was apparent, at the trial, that the engineer and Schram were negligent, but the court told the jury that the plaintiff could not recover, as lie was a co-servant, if their negligence solely caused the injury. But he allowed other inquiries to be made as to whether the defendant had not itself been guilty of negligence, and the jury to find that the accident “ would not have occurred if it had not been for the negligence of the defendant itself.” (Cone v. D. L. and W. R. R. Co., 81 N. Y., 206.) The switch which was left open by Schram had been in use for the purpose of passing trains from the north side of track No. 2, on which plaintiff’s train was running westwardly, to the southerly side of track No. 2. It had served the purpose for which it was designed and safely carried trains across; for all the ordinary and usual purposes it had proved and appeared to be an adequate “ instrumentality.”

The court left it to the jury to say whether it was a proper and suitable instrumentality, and whether it was not the duty of the company to have a different one, one that would serve the purpose of meeting all exigencies brought about by the negligence of two employees of the defendant, who were co-servants of the plaintiff. Primarily the negligence of the engineer, and proximately the negligence of Schram, the switchman, in leaving the switch open, carried the train off of the track No. 2 and produced the derailment which injured the plaintiff.

If the stringent exaction of the rule which defendant is under in regard to passengers were applicable, the theory of the plaintiff might De proper. (Smith v. N. Y. and Harlem R. R. Co., 19 N. Y., 127; Hegeman v. The Western R. R. Co., 16 Barb., 353 ; S. C., affirmed, 3 Kern. [13 N. Y.], 9.) But a different rule obtains when the injured party is an employee, who, by his contract of employment, takes upon himself the risks caused by the negligence of his co-employees, and the usual risks incident to the hazardous employment in which he engages.

The pivotal question upon this branch of the case turns upon the solution of the question as to whether the defendant was negligent in not providing a safety switch, a trailing switch, or such a contrivance, in addition to the ordinary cross-over, as would guard against the exigency which came about by reason of the neglect of the engineer and Schram, the switchman. That question seems to be determined adverse to the plaintiff by the case of Salters v. Delaware and Hudson Company (3 Hun, 338). It was said in that case that “ a railroad company is not bound to employ mechanical appliances to protect one servant from injuries liable to result from the negligence of another.”

The negligence asserted was the omission of the defendant to have a target switch, and Landon, J., said: “ The switch was not open in consequence of any defect in its construction or for want of proper repair. It was an adequate and sufficient switch so far as the adjustment of the tracks to each other was concerned, and that seemed to be the chief office of a switch. It was a common switch.” In that case it was held error to leave it to a jury to say whether defendant was not guilty of negligence “ for not getting a target switch.” Apparently the court, in the case before us, went beyond the rules laid down in that and other adjudged cases in the charge as given and the refusals made.

Appellant’s learned counsel cites us to Smith v. New York and Harlem Railroad Company (19 N. Y., 133), but it does not apply. Seluen, J., said: “As between the deceased and the defendants no such relation as that of master and servant existed. The question between them, therefore, is the same as if the deceased had been a passenger upon the train to which the accident occurred.” That case followed the rule laid down in Hegeman v. The Western Railroad Company (16 Barb., 353) and affirmed in 3 Kernan, to the effect that “ all inventions and improvements known” to defendant which will contribute materially “to the safety of their passengers, whenever the utility of such improvement has been thoroughly tested and demonstrated,” must be used. (Smith v. R. R. Co., supra, 133.)

The case of Kirkpatrick v. Railroad Company (79 N. Y., 240), was one where the engine in use was defective, and by reason of the defect the explosion took place which killed the foreman, whose representative brought suit. Nor does Pantzar v. Tilly Foster Company (99 N. Y., 368) apply, as that was a case where a dangerous overhanging rock fell and caused an injury, and was clearly a ease of want of ordinary care and prudence on the part of the master, Stringham v. Stewart (100 N. Y., 516), was a case of a dangerous and dtfective machine, or an elevator, which fell for want of proper safety appliances while being operated by the plaintiff. Probst v. Delemater (100 N. Y., 266), was a case where a cable was used to haul in connection with a derrick and .there ivas an injury, and the jury found that the cable was not safe and secure, and there was no evidence of any care in selecting the cable and a verdict was, therefore, sustained in favor of plaintiff.

In Ellis v. The New York, L. E. and W. Railroad Company (95 N. Y., 546), the buffers were defective and failed to perform the duty which they were provided for, and, therefore, a recovery was sustained. That case was distinguished by Danforth, J., from Salters v. Delaware and Hudson Company [supra). Employers are not bound to insure against accidents; “ in the case of employees they are only obliged to provide appliances which are safe so long as used without negligence; the employee takes the risk of danger from negligence of his co-employee.” (Burke v. Witherbee, 98 N. Y., 562; Rummell v. Dillworth, 3 Eastern Rep., 820; Salters v. Delaware and Hudson Company, supra; Piper v. Railroad Company, 1 T. & Cook, 290.)

In the case last cited Boardman, J., remarked, viz.: “ If a common switch is property cared for it is as safe as any other.” (See, also, Bajus v. S., B. and N. Y. R. R. Co., 25, Weekly Dig., 5 ; Randall v. B. and O. R. R. Co., 109 U. S., 478; Sammon v. The N. Y. and Harlem R. R. Co., 62 N. Y., 255 ; Gage v. D., L. and W. R. R. Co., 14 Hun, 447.) Between employer and employee the law does not require the safest appliances or instruments, nor does it fix a liability upon the employer “ for the failure to discard ” those which are not safest for every exceptional exigency. (Thomp. on Neg., 983.)

It may not be left to the jury to say what switches, what patented article or contrivance, shall be used by a railroad company in order to escape liability from injury to an employee caused by the negligence of. a co employee.

A new trial should be ordered.

Boardman and Follett, J. J., concurred.

Judgment and order reversed and a new trial ordered with costs to abide the event.