A train of the defendants was running at a high rate of speed on a descending grade, but over a section of the road straight for several miles, the road well-constructed and in good order, with engine and cars also in good condition, when, at a point a few miles west of Syracuse, and at about midnight, the train ran off the track, and the car in which the plaintiff was riding as a passenger was turned over and he was seriously injured. Two other trains had passed over the same point within two hours previous to the accident — one of them about thirty minutes before — when the track and rails were all in order. But, in the short intervening time, some evil and malicious person had drawn out spikes and pushed some of the rails from their bed, and by this means the engine and part of the cars were turned off the track. There were three passenger cars and a baggage car in the train. They stopped almost immediately, according to the testimony of the plaintiff, who is himself a railroad engineer. He was riding in the middle car, which was turned over on its side, but the car next in rear was not drawn *Page 16 entirely off the track. The witnesses were in conflict as to the speed of the train at the time of the accident — the engineer who was in charge swearing that he was positive he was not going much, if any, over thirty miles an hour; while, on the part of the plaintiff, evidence was given tending to show that the rate was as high as fifty miles per hour. The facts that the cars were stopped so soon — almost immediately; that the couplings were not broken; that, with a small train of only four cars, the last car was not thrown entirely from the track, would tend to show that there was not, at the time, a high rate of speed. But, as the plaintiff was nonsuited, we must, perhaps, take his evidence, and concede that the cars were running at a high rate, say fifty miles an hour. The train, it was said, was a few minutes behind time; the road was in good order; the grade a little descending; and the line in front straight for several miles. A rate of fifty miles an hour is not common, but by no means unusual or extraordinary, on well-constructed roads. There was a possibility of accident, as there is a possibility attending the movement of every train, whether the rate be twenty or fifty miles an hour. But there was no probability that such accident, or any accident, would occur. As this train was turned from the track by the ends of rails moved from their bed, and ran down a bank, no court or jury would be warranted in saying that the accident would not have occurred had the train been running only at the rate of twenty instead of fifty miles an hour. I do not see, under the circumstances, how negligence could be imputed to the defendant in consequence of the speed of the train. Whether or not the accident would have otherwise occurred, would be a matter of vague speculation.
But was the defendant warned? Would a very careful and prudent person have been led to fear, and take precautions other than the defendant did, to guard against anticipated danger? Wibert, who was assistant trackmaster, and who had charge of a division of the road, of about twenty-nine miles in length, was examined in behalf of the plaintiff. On his division the accident took place. He testified that Miller, the trackmaster on the whole line from Syracuse to Rochester, *Page 17 had told him to be on his guard; but he could not tell whether it was before or after the accident, but he thought it was before. Two or three days before the accident, Wibert also had a controversy with his laborers on the road, and he ordered them out of doors, and one of them he took by the collar and shoved out, and they said they would have satisfaction. But against what Miller advised Wibert to be on his guard, and what kind of satisfaction the laborers intended to take, does not appear. Whether he was to be on his guard to prevent injury to the road, or to protect himself against personal violence, we are not informed. The plaintiff, on his own behalf, swore that Harrison, the engineer on the train the night of the accident, told him afterwards that threats had been thrown out against the road six weeks previous to such accident. This was positively denied by Harrison. It also appeared that, some six weeks before the accident, a tie or ties had been put on the track, and Wibert also testified that Chittenden, the assistant superintendent, or Miller, the trackmaster, which, he did not know, had told him that there had been, shortly before the accident, some obstructions placed upon the road not far from where the Oswego road came in, and not far from where the accident occurred. The information probably came from Miller, who had previously been examined as a witness, and who testified that he had heard that ties had been thrown on the track. Chittenden, the superintendent, testified that when danger was suspected from evil-disposed persons, watches were placed; that he was in daily consultation with the principal trackmaster; that he had heard nothing to put him on his guard, and had no reason to suspect anybody; that afterwards, and in consequence of the accident, he appointed special policemen to watch the road in that vicinity.
It must be conceded, I think, that there was a question of fact, growing out of conflicting testimony, as to the knowledge possessed by some of the subordinate officers of threats made against the road. But the evidence, to say the least of it, on this point, was very unsatisfactory; and it is very evident that no such information had come to the person *Page 18 whose duty it was to take the necessary precautions and to appoint the special police watch, namely, Mr. Chittenden, the assistant superintendent, having in immediate charge this section of the defendant's road. But, conceding that, so far as the question affects the case of negligence, the superintendent was bound to know all his subordinates knew, or, in other words, that their neglect was his neglect, and his neglect that of the defendant, what was required to be done, under the circumstances? Wibert, to whom the threats were made by the laborers, had under his immediate charge twenty-nine miles of the road. Under the circumstances of this case, suppose that a watch had been placed at the point where this accident occurred, and no accident had occurred there, but one had occurred of the same character at or near Wibert's place of residence, and near where the controversy arose between him and the laborers, it might then have well been argued that there was neglect, if the plaintiff is right in his theory of the liability of the defendant. But it may be seen, that, if not physically impossible, it was practically so, to guard against such an accident as occurred in this case. The threats were vague; no place of attack was mentioned. It was not indicated what kind of injury would be done; whether bridges would be destroyed, burned or blown up; whether obstructions would be placed on the rails, or rails removed. In this case, the place selected was an embankment, where bushes were growing thick alongside the road — a place of ready concealment. The night was dark, and rain was falling. If obstructions were to be placed on the road, it might be but the work of a moment; on the very instant, almost, that the train reached the spot. If rails were to be removed, the spikes could be drawn from time to time, and preparation made so that in a few minutes, perhaps seconds, the rails could be removed as the train approached. It cannot be said that it would be impossible to guard in such cases against the motives and crimes of wicked men; but, unless the very point where the injury was contemplated was known in advance, it would require for entire protection a very large number of recruits from the recent grand armies of the Union. *Page 19
On the whole case, I do not think there is good ground, or any ground, for saying that this plaintiff suffered injury by reason of the negligence of the defendant. I think the nonsuit was properly granted, and the judgment should be affirmed.
All the judges concurring,
Judgment affirmed. *Page 20