Barry v. Boston & Maine Railroad

Hill, J.

The action was brought to recover for damages as provided in the Federal Employers’ Liability Act. Plaintiff was employed by defendant in its yard at East Deerfield, Mass. It was his duty to keep the fires on unassigned engines. When he first saw the engine which caused his injury, there were no chains on the wheels, which indicated that it was ready to go out. He got aboard to perforin his usual work, but finding the fireman raking the fires, he sat down upon the engineer’s seat across the boiler from him. At that time the engineer was not in sight. Later he came into view, and directed plaintiff to move the engine to permit the oiling of “ the witches.” Plaintiff moved the necessary lever, and while so doing the fireman said “ be careful, there is no air on,” but the engine had started and neither the plaintiff nor the fireman was able to stop it. It was headed toward a turntable pit. Plaintiff jumped, breaking his ankle. Defendant’s motion for a nonsuit and dismissal of the complaint upon the ground that plaintiff was not acting within the scope of his employment when he moved the engine, and upon the further ground that the sole cause of the accident was the failure of plaintiff to see that there was air to operate the brakes before he started it, was granted. The learned trial justice said there was no proof that the engineer knew plaintiff was in the cab; that he did know the fireman was there, and supposed he was giving the direction to him. If this circumstance mentioned by the court is determinative of plaintiff’s right to recover, he is entitled to the most favorable inference that can be drawn from the evidence. Plaintiff says the engineer was not in sight when he first got on the engine, but later came into view. He was asked this question, “ And he told you to move the engine forward so that he could oil the witches? A. Yes.” Again on cross-examination he said: “ When the engineer hollered up to me —.” This would indicate that the instructions were given to the plaintiff.

It is stipulated that the last previous run of this locomotive was in interstate commerce and that at the time of the accident it11 was in charge of Engineer Davis and Fireman Smith.” It was being prepared to draw a train containing interstate cars. While it was being oiled, inspected and prepared for such trip, it was engaged in interstate traffic. (North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 260.) The defendant argues that plaintiff alone was negligent because he started the engine without looking directly in front of him at the gauge that indicated there was no air to operate the brakes. We may concede that such conduct was negligent, but if the engineer also was negligent, plaintiff can recover. This engine was in charge of the engineer. It could only be moved when he directed. A rule of the company offered in evidence provides: “ The engineman is personally responsible for every movement of the engine when in service.” It was a negligent act to direct the movement of this engine without affirmatively employees of an interstate commerce carrier participate in careless operation of a train and death results to one of them, the statute imposes liability upon the carrier. A trainman killed in a collision may be found to have been negligent, yet the carrier is not absolved from blame, when the dispatcher also is at fault. (Union Pac. R. R. Co. v. Hadley, 246 U. S. 330.) ” (Caldine v. Unadilla Valley Railway Co., 246 N. Y. 366, 368.)

Plaintiff’s employment required him to watch the fires on the engines standing in the yard. Some of them, including the one in question, were engaged in interstate commerce. His regular employment brought him within the provisions of the Federal act. (Knowles v. N. Y., N. H. & H. R. R. Co., 223 N. Y. 513; Erie Railroad Co. v. Szary, 253 U. S. 86; Salvo v. N. Y. Central Railroad Co., 216 App. Div. 592; Pedersen v. D., L. & W. Railroad Co., 229 U. S. 146.)

The evidence does not disclose whether plaintiff had been seated in the engine seconds or minutes. It was a question of fact for the jury whether this temporary relaxation and conversation with a coemployee, immediately followed by an act in aid of the business of his employer, was an abandonment of his work. His superior, so far as the operation of the engine was concerned, directed him to perform an act in furtherance of an interstate movement of freight. There was no rule or requirement that he should not obey such direction. The negligent act of the engineer was imputable to the master. (McCarthy v. Pennsylvania R. R. Co., 189 N. Y. 170.)

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

Davis and Hasbrotjck, JJ., concur; Hinman, J., dissents, with an opinion in which Van Kirk, P. J., concurs.