The plaintiff, while in the performance of his duty as a rear brakeman on a freight train of the defendant, fell to the roadway of an underground farm crossing through an opening between the east and west-bound tracks of the defendant's railroad and received serious injuries for which he seeks to recover in this action. *Page 229
The general plan of the farm crossing was one common in railroad construction. A roadway twelve or fifteen feet wide was carried across and under the railroad tracks eighteen feet below their level. Stone abutments were erected on either side of such roadway, and on such abutments were placed stringers on which the ties and then the rails were laid. Such construction left an open space between the two sets of tracks, which was about three feet wide and extended over the crossing. The plaintiff at the time of the accident was employed on an east-bound train consisting of eighty loaded cars. The farm crossing in question is less than one-half mile westerly of Portage bridge over the Genesee river. Castile is a station about four miles westerly of Portage bridge. The train upon which the defendant was employed reached Castile about 1:30 o'clock in the morning. It there stopped and one of the two engines drawing the train was detached and turned upon a turntable preparatory to being used to assist in pushing the train to and over Portage bridge. The head brakeman assisted in the work with the engine, while the plaintiff, in accordance with his duty, took a lantern and certain appliances and proceeded to examine the running gear of the train. He commenced on the southerly side of the train and continued along that side thereof, swinging his lantern between the cars and examining the running gear and appliances, including the journals. He found that three of the journals on the southerly side of the train had become hot, and required that the packing should be readjusted, and he added oil from an oil can which he carried. When he had finished inspecting the southerly side of the train it was about to start, and he got upon the engine and rode thereon until the train reached the regular stopping place immediately west of Portage bridge. The bridge at that point has but one track, and there is a general rule of the defendant that all trains must stop before proceeding over the Portage bridge, and there is also a water spout near the bridge from which water is taken for the engine. When this train stopped at Portage bridge the plaintiff started on the northerly side thereof, walking as he was *Page 230 required to do between the two tracks inspecting the cars from the northerly side as he had done at Castile on the southerly side. Before he left Castile he knew from a peculiar odor that there was a heated journal or journals on the northerly side of the train. In proceeding westerly with his inspection of the northerly side of the train he found a journal about thirty-five cars from the engine that was heated, and with a peculiar hook he made what he called a pocket about the journal and filled it with oil. As he was doing so the train started and proceeded easterly. He had placed his lantern upon the ground while he was repacking the journal. It had fallen on its side and the light had gone out. He walked with the train four or five steps to complete the work that he was doing. He then turned and picked up his lantern and lighted it — put it on his arm and picked up his other appliances and turned westerly, intending to get upon the train and proceed with it, as he knew that the next stopping place was about fifteen miles easterly, and as he took a few steps to the westerly, watching the journals of the cars by the light of his lantern as they passed, he fell into the open space between the tracks, as stated.
The rules of law applicable to this case are simple and well known. It is not necessary to state them. The plan or construction of the farm crossing is not in controversy. The question to be determined is whether the defendant under the circumstances disclosed in this case was negligent in leaving said space open and uncovered. It was entirely practical to cover it by the use of timbers and planking. It appears that it is the usual custom to cover similar openings when they are within yard limits where switching of cars and the making up of trains is a common occurrence, and it also appears that it is not the custom of railroads generally to cover similar openings along the line of their roads where the trainmen are not required to walk between the tracks for the inspection of their trains or for any purpose except in cases where the train is there stopped and held for some unforeseen and unusual reason. One of the witnesses called by the *Page 231 defendant as an expert, referring to the space between the tracks, testified: "When it is necessary for trainmen to pass back and forward daily and several times a day I regard it as necessary to cover them." I think that the evidence discloses a situation at the farm crossing mentioned which made the question of the defendant's negligence in failing to cover the opening for the protection of its employees a question of fact. It appears as I have stated that every train was required to stop before crossing the bridge and that the defendant had there provided a water spout from which water could be taken for the use of the engine and that it required ten minutes or more to take such water. It also appears that the farm crossing was within the space covered by an ordinary freight train while standing west of the bridge in obedience to the orders of the company and for the purpose of taking water. It further appears that there was a yard limit sign some distance west of the farm crossing. It may be helpful in considering the question as to the negligence of the defendant to refer more specifically to the significance of the defendant's yard limits at that point.
Within the yard limits of a yard where switching of cars is done and trains are made up there are special rules to govern the different employees therein. The yard limits at Portage bridge are very significant, but switching was not ordinarily done within such yard limits and trains were not made up there except that there was one switch therein upon which crippled or disabled cars could be placed if found in the train when it was standing there prior to crossing the bridge and while taking water. The yard limits were there established because every train was compelled to stop before crossing the bridge, and also because they might stand there for ten or fifteen minutes for the purpose of taking water. The yard limits there meant to every trainman upon trains approaching such yard limits that they should have their trains under control to avoid a collision in view of the fact that it was always possible that a train would there be standing upon the tracks. Because such yard limits were there *Page 232 established it was not necessary for the rear brakeman when his train stopped to go back to signal a possible approaching train. If a train stopped on the tracks of the defendant at any point outside of yard limits it was the duty of the rear brakeman to proceed on the track back of the train with a signal for the purpose of protecting his train from collision from the rear and he could not, therefore, inspect the running gear and apparatus of his train at that time. It is not to be presumed, therefore, that trainmen will be required to run along the sides of their train at points upon the road where they do not stop except in case of accident or unforeseen circumstances. The space between the tracks over the farm crossing in question was directly in the path that the plaintiff as a brakeman was required to travel in doing the work that he was required to do. It appears without contradiction that it is not a brakeman's duty to inspect the running gear of his train every time it stops, but that it is his duty to inspect the running gear at certain stops that are made under general orders including the stop at Portage bridge. When stops are made outside of yard limits the time of the brakeman is wholly taken up in protecting the train from collisions, but in cases where a stop is made by general order and within yard limits their time is not so employed.
The defendant's superintendent for that part of its road, including the yard limits at Portage bridge, testified: "The conductor and his men are required to look over the wheels and the running gear of their trains whenever they stop long enough at any one point to permit its being done. That inspection usually takes place at points where the engine or engines stop for water."
The testimony of the superintendent that I have just quoted read with the testimony of the defendant's expert from which I have also quoted is express authority for the conclusion of the jury that it was negligence in the defendant not to cover such opening. On this particular train there were five men in the train crew. At Castile the engineer and fireman were engaged on their engine — the conductor *Page 233 and head brakeman were assisting in the work of the second engine, and it left the plaintiff alone to inspect the train. When he left Castile he knew that the running gear at some point on the north side of the train needed attention and the attention which he gave it while the train was stopping at the bridge was in his immediate line of duty. A hot journal unless cared for may result in so burning out the bearings as to wreck the train. If the plaintiff under the circumstances disclosed had not inspected the north side of the train as he did while it was standing at the bridge, he would have been negligent in the performance of his duty.
The trial court was right in submitting to the jury the question whether under the circumstances disclosed it was not the duty of the defendant to cover the opening between the tracks in the yard limits at Portage bridge the same as it covered similar openings in its yard limits where cars are switched and trains made up.
This court has frequently held that a defendant's negligence was a question of fact in cases where the particular circumstances did not show a greater duty toward railroad employees than is shown in this case. (Plank v. N.Y.C. H.R.R.R. Co., 60 N.Y. 607; Fredenburg v. Northern C.R. Co.,114 N.Y. 582.)
The question of the plaintiff's contributory negligence and of his assumption of the risk are questions of fact. (Plank v.N.Y.C. H.R.R.R. Co., supra; Wallace v. Central Vermont R.R.Co., 138 N.Y. 302; Labor Law, section 202, formerly section 3, chap. 600 of the Laws of 1902; Guilmartin v. Solvay ProcessCo., 189 N.Y. 490; Clark v. N.Y.C. H.R.R.R. Co., 191 N.Y. 416. )
The judgment should be affirmed, with costs.
CULLEN, Ch. J., HAIGHT and WILLARD BARTLETT, JJ., concur with WERNER, J.; HISCOCK, J., concurs with CHASE, J.; VANN, J., not sitting.
Judgment reversed, etc. *Page 234