[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 490 On the facts included in the foregoing statement and such others as appear in the record, the respondent was entitled to have his cause submitted to the jury as against both appellants.
This is hardly disputed in the case of the New York, Chicago and St. Louis Railroad Company, and we do not regard any discussion necessary on that point with respect to that appellant. While a cause of action for the consideration of the jury as against the other appellant was less conspicuously established, we think one was made out. Although the respondent by his evidence at all times insisted that the collision was caused by the disobedience or disregard by the fireman on the New York, Chicago and St. Louis Railroad of the danger signal given to him, this fireman gave evidence which permitted a jury to find that the towerman was confused in his signals, first giving him one of safety and then one of danger. All of the roads including this appellant, the South Buffalo Railway Company, relied on and made general and joint use of this tower for signals for the crossing which they all used, and the safety of which they were all bound to guard, and each one must, therefore, be held liable for the proper operation of the tower. The signalman on duty at the time of the accident had been there for eighteen hours giving signals for a great number of trains, and in addition discharging other duties, and under these circumstances we think that the jury had a right to say, if they so desired, that it might have been anticipated that he would become negligent or inefficient, and that the appellant, the South Buffalo Railway Company, was not exercising a proper degree of care in protecting and safeguarding its crossing.
Passing by this question involving the existence of a cause of action, we are presented with many allegations of error in behalf of each appellant relating to the exclusion and admission *Page 493 of evidence and to the instructions given by the trial judge. Owing to the different situation, rights and responsibilities of the appellants, respectively, the trial of the action was necessarily somewhat complicated, and some errors were not unnaturally committed which require a reversal of the judgment as to each appellant. We shall not discuss those criticisms upon the conduct of the trial which, in our judgment, are not well founded, but shall simply consider so many of said criticisms as do suggest substantial errors, taking up first the case of the New York, Chicago and St. Louis Railroad Company.
The trial judge permitted the jury to say that this appellant's fireman who was operating the freight train was incompetent as constituting a ground of negligence. We have much doubt whether there was any evidence permitting the jury to say that the fireman was incompetent to perform the general duties being discharged by him at the time of the accident, but if he was, incompetency was no part of respondent's cause of action. Said appellant was bound to run its train with reasonable care and caution and for that purpose to obey the signals given by the towerman, and the requirements of the statute. If the fireman failed in these requirements and as the result thereof the appellant ran its train into collision with the other train, it is liable no matter how competent the fireman may have been. On the other hand, if the defendant operated its train, with due regard to signals and with reasonable care, it is immaterial how incompetent the fireman may have been. This is not an action by a co-employee but it is an action by a third party where the question is whether the appellant itself has used proper care, and if it has done this it is not liable, and if it has not done it, it is liable no matter how competent the employee through whom it operated may have been.
What we have said on this point will bear on certain instructions given to the jury whereby apparently the latter were permitted to find this appellant guilty of negligence because of the temporary absence of the engineer from the *Page 494 engine when taken in connection with the alleged incompetency of the fireman. But we do not intend to hold that it was not permissible to allow the jury to consider under all of the circumstances as bearing on this appellant's negligence the fact that its freight train was being operated by only two men without the airbrakes on any of the cars being properly coupled up for use.
The respondent on the cross-examination of this appellant's fireman brought out testimony tending to show that one of the pipes on his engine was broken at the time of the collision so that he could not apply sand for the purpose of stopping the engine more quickly. He almost stopped the engine before the collision without the use of this sand and, therefore, this evidence assumed considerable importance. The counsel for the appellant moved to strike out this testimony and counsel for the respondent then stated that he was going to ask the witness what he testified to on this question before the coroner and as testing his recollection. Thereupon the court said, "No claim is made that this is one of the items of negligence," and the counsel for the respondent stated, "No, sir, none whatever." Upon this statement the motion to strike out the testimony was not pressed or ruled on and no objection was made to further questions on this subject. Notwithstanding this the trial judge, in spite of the objection and exception of counsel, allowed the jury to consider this evidence as tending to establish appellant's negligence. This, of course, was manifest and substantial error and was undoubtedly due to inadvertence on the part of the trial judge and to the manifest difficulty of recollecting all that had occurred on the trial.
Taking up the case of the other appellant, it appears that some evidence was introduced of the use at grade crossings of systems of interlocking signals and switches so arranged that the signal when set at danger against a train opened a switch and either derailed or sidetracked the train before it could reach the crossing, and the jury was in substance, amongst other things, permitted to find the South Buffalo Railroad *Page 495 Company guilty of negligence because it did not employ some such device at the crossing in question. This was error under all of the circumstances developed on the trial. So far as the evidence presented in this record discloses, in the employment of such a system, the derailing device would not be put into operation against a train unless the danger signal was set against such train. If the signal was set at safety the train would not be derailed or stopped. There is no question that the safety signal was set for the train on this road at all times and on the evidence as presented it is fair to assume that if such a device as has been mentioned had been in use the safety signal would in similar manner have been set and the train allowed to proceed on to the crossing.
For these reasons the judgment appealed from should be reversed and a new trial granted to both appellants, with costs to abide event.
CULLEN, Ch. J., HAIGHT, VANN, WERNER and WILLARD BARTLETT, JJ., concur; EDWARD T. BARTLETT, J., dissents.
Judgment reversed, etc.