(dissenting):
This action, brought to recover damages for injuries suffered by the plaintiff, resulting in the loss of his left hand while he. was employed as a car inspector’s helper in the defendant’s railroad yard, was before this court on a former appeal (27 App. Div. 12) in which many of the facts are stated.
The plaintiff went to work for the defendant on the 1st of June, 1895, and on the morning of June twelfth, in the same year, he *391was directed to assist in taking oil the wheel of a car on what was known as a “ wheel spur track,” and, while so engaged under the car in prying up the wheel with a bar, an engine backed down on the track aud the plaintiff’s hand was crushed so that amputation was necessary. Upon entering the employment o.f the company the plaintiff agreed to be bound by its rules, one of which, introduced in evidence, provided that, when car inspectors are at work, a blue flag by day and a blue light at night shall be displayed as a warning. Such' signal was not used at the time of the accident, and the contention of the appellant is that, even if it be held that the plaintiff did not know of the rule, yet, from the testimony of the car inspector Clavin, whom he was assisting in the work, and who stated that he was entirely familiar with the rules of the company, requiring a signal to be used when cars.were being repaired, it appeared that the accident, if any, was caused by the negligence of Clavin, a co-employee, for which the defendant was not liable.
It is no doubt the settled law that when one servant is injured solely through the negligence of a fellow-servant, the master is not. liable. It is equally well settled, however, that if the negligence of the master contributes to produce the injuries, a recovery for such is not defeated by reason of the negligence of a fellow-servant. This was the law as expressed in Coppins v. N. Y. C. & H. R. R. R. Co. (122 N. Y. 557), where a brakeman was injured by the derailment of his train due to a misplaced switch. The switch had been misplaced by a fellow-servant named Schram, who had violated a rule of the company requiring the switch to be closed and locked for twenty minutes prior to the arrival of a passenger train. A verdict having been recovered on the ground that Schram had frequently violated such rule, which violation was known, or ought with reasonable care and attention to have been known, by the defendants, the Court of Appeals, among other things, in the course of the opinion, said: “ If the evidence in this case justifies the conclusion that the engineer of the passenger train was negligent in not observing the target at the misplaced switch, or in running his train at a high rate of speed past the station in the absence of signals that the track was safe, that fact of itself is not available as a defense, if negligence was established on the part of the defendant, as the law is too well settled upon principle and authority to be now questioned: *392.that negligence of a servant does not excuse-the master from, lia-' bility to a co-servant for an injury which would not have happened had the master performed his duty. ■* * * This involves an inquiry into the rules that had been adopted by defendant to insure the safe passage of trains through the St., Johnsville yard and over the switches in question, and whether the violation of these rules in this particular instance 'can be charged against the defendant as an .act of negligence on its part. * * * The plaintiff .seeks to-so charge it by proof that Schram was in the habit of frequently neg-' dec ting to be at his post and signal passenger trains, and was in the habit of frequently leaving the yard and going to his supper about • the time the train in question was due at St. Johnsville, and that his habits in that respect were known, or ought with reasonable care and attention to have been known, to defendant. If the evidence justified this conclusion the defendant’s negligence was established. No distinction exists in principle between permitting the use of defective machinery and permitting employees to habitually disregard the safeguards that have been provided to insure the safe running and operation of trains.”
And in Whittaker v. D. & H. C. Co. (126 N. Y. 544) the court says: “ The proof showed that the accident occurred in the night time in'the defendant’s railroad yard-at- Quaker Street, through a collision between an incoming freight train, upon which the plaintiff’s intestate was employed as fireman, and an engine left standing-on the main track of defendant’s road, in violation of the rules of .the company, by its engineer while he was waiting in the office near by for orders.
. “ It is claimed by the defendant that the presence of the stationary engine on the track was due to the fault of its engineer, who placed it there in contravention of a rule of the company forbidding its employees-from placing engines and cars on the main track except under orders. It is conceded that this engineer had no orders to go upon the main track with his engine, and it is, therefore, claimed that the accident, having occurred through the fault of .a co-servant, •the company is not liable:.
“ There was evidence in the case to show that this engineer and others, for a period of at least - one year, had been in the habit of disobeying this rule of the company, and violating its requirements *393by placing their engines upon the main track at Quaker Street, and leaving them there while awaiting orders. This practice had been so frequently indulged in, arid had continued for such a length of time, that the jury were justified in finding that it had come to the knowledge of the railroad company and was pursued by their acquiescence or as the result of a want of vigilance in supervising the management of their road,
“ A railroad company does not discharge its whole duty to the public by merely framing and publishing proper rules for the conduct of its business, and the guidance and control of its servants, but it is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules. .* * * The rule in reference to constructive notice is well expressed in the case of Hilts v. Chicago and Grand Trunk R. Co. (55 Mich. 437) as follows: 'A master who retains an incompetent servant in his employment after knowledge comes to him of the unfitness of the servant for the service in which he is engaged, or of whose unfitness he might have known by the exercise of due diligence or ordinary care, is liable for injury to another servant caused by the negligent acts of the incompetent servant.’ ”
These cases are to be distinguished from Corcoran v. D., L. & W. R. R. Co. (126 N. Y. 673), Moeller v. D., L. & W. R. R. Co. (13 App. Div. 467), and Davis v. Staten Island Rapid Transit Co. (1 id. 178), where the defendant companies had suitable and adequate rules which were known either to the persons injured or to the fellow-servants working with them, and, in which the defendants did not permit the rule to be infringed or disregarded, and in neither of which cases was it claimed that the defendant company knew, or ought to have known, of any violation of such rules.
The plaintiff seeks to place the liability of the defendant Upon the principles enunciated in the cases from which we have quoted, by showing that the'rule here in quéstion had been habitually and totally disregarded upon the wheel spur tracks with the knowledge and acquiescence of the defendant. It was upon this theory that the learned trial judge permitted the case to go to the jury, and it remains for us to consider whether the evidence justified that dispo*394sition of the case It must be assumed that, while there is no direct evidence that the plaintiff knew of the rules, yet, having agreed to-be bound by them; he would be affected by any proper and adequate regulation which the company was enforcing for the management of its business and the protection of its servants. It is not disputed that the rule required that employees while making repairs should display a blue signal, and that it was enforced generally in ■ the yard where this accident occurred; but the claim is made that it was never enforced on the wheel spur tracks, and that the failure to enforce it or see that it was enforced had continued for a period 'so long that the defendant, through its representatives, knew or ought to have known that it was habitually and persistently disregarded. The plaintiff himself testified that he had only worked for the defendant twelve days upon the wheel spur, and that there were no signals used upon the wheel spur tracks, and that he did not know anything about signals on that wheel spur track;- that np one told him about any rule or signals, nor was the matter ever mentioned to him that there was a rule which required a blue flag by day and a blue light by night. He also testified that during the twelve days he was at work for the defendant he had not worked upon any other tracks in the defendant’s yard.
Olavin, who was working with the plaintiff at the time of the accident, and through whose negligence in failing to employ a signal the defendant insists that the accident was caused, had been employed on the spur track for thirteen months before the accident, was one of a “ gang ” longest in the defendant’s employ, and had such experience that he was put in charge of the “ gang.” He testified that there was no flag or signal used -on the wheel spur tracks, and he had never known them to be; that he was instructed to use them 'out in the freight yard, but none were furnished for use on the spur track, and he received no orders to use them. This may or may not explain his written statement made just after the accident that lie “ did not think it necessary ” to use the signals. He further testified that Mr. Rutan, a car inspector who was present at the time of the accident, when concededly no signals were used, had never told him to use signals on the spur tracks although he was with him there three or four times a day for six or eight months; ■ that Mr. Donnelly, the yardmaster, had been there five or six times *395& day for eight months and had said nothing about using signals ; that his particular “ boss,” Mr. Faber, chief inspector, had also seen him there for the same period without mentioning that signals were to be used there; that he understood the rule, but received no instructions as to the spur tracks, and that it had been the custom to signal by conversation.
Another witness, Pope, testified that he worked for the company from 1891 to 1896, and was in the yard as brakeman and drillman and was often at the spur track, but had seen no signals' used on that track until the day of the accident. John M. Doll, who had been five years,employed, but had left in July, 1895, and who had-been employed a good deal of his time in the yard, averaging as he states three or four trips a day over the spur tracks, testified that prior to June twelfth, he had never seen blue signals there, although he saw the “ bosses,” often. Similar testimony was given by Henry Gebhardt, who had worked for the defendant two years and left in 1894.
On the other hand, we have the testimony of Faber, Rutan and Donnelly that they did not notice that the men did not use the blue signal on the wheel spur track, Rutan stating that he had not known of men disregarding the rule, but when asked as to the wheel spur he was not very positive as to that particular track. Nor can we say that the denials made by Rutan and Donnelly, considered in connection with the whole testimony, were of such a positive character as to justify the conclusion that the plaintiff’s testimony that the signals were not used was entirely overborne. In addition to these, there was one other witness of the defendant who testified that he had worked as a car inspector for the defendant during 1895 and previous thereto, and that he used a blue flag upon the wheel spur tracks when making repairs.
We have then on the part of the plaintiff a great number of witnesses who positively state that they did not use the signal when making repairs and did not observe that anybody else used it while so employed. It is fairly inferable that, with the persons named having charge of the men constantly about the yard, this could not have been done without their attention at some time being called .to the fact that the rule was not being observed. In other words, the plaintiff’s evidence is fairly susceptible of the view that, with their *396presence in the yard and their opportunity to observe the manner in which the rule was enforced,, it was habitually disregarded and allowed to fall into disuse.
. Under the doctrine, therefore, of constructive notice, if such evidence is not sufficient to prove actual notice as referred to in the cases cited, while the negligence of Olaviu, a fellow-servant, in not observing the rule and using "the signal must be conceded,, it was a question, notwithstanding such negligence,, for the jury to determine whether the rules framed by the defendant for the conduct of its business and the guidance and control of its servants with respect •to using signals on this particular wheel spur track had or had not been so persistently neglected for a period of time sufficiently long to justify the inference that the defendant was wanting in care and diligence in enforcing such a rule. Differently and broadly stated, the question presented for the consideration of the judge upon the motion to dismiss' the complaint on the plaintiff’s evidence, and again at the end of the entire case was, whether in a case where the defendant had made proper rules of general application'to the whole road, but which all of the employees except one, without express permission from the.defendant, persistently neglected to observe as to a single short" set of spur tracks, the master can be held liable if one of the men is injured because of failure on the part of a fellow-servant to observe a written rule which practically all the employees were permitted to disregard for a long period.
We think the answer is dependent upon the inference to be drawn from the testimony of the plaintiff as to whether it tends to show that the rule was not enforced upon this particular track for so long a time and so habitually that the defendant or those representing it knew or ought to have known that it was not being observed. It cannot be. that the mere making of rules alone is sufficient. It is the duty of the company to make them known and see that they are enforced, or at least the duty devolves upon it to exercise such care and supervision as to prevent the rule being persistently disregarded.
It will be seen, therefore, that we have reached the conclusion that upon the evidence adduced it was properly a question for the jury; and their verdict reached by awarding a sum which, considering the nature and extent of the injuries, cannot, as matter of law, *397be regarded as excessive, will require the affirmance of the judgment unless the exceptions taken to the charge of the court and to requests as charged or refused are good.
The first error assigned is to that portion of the main charge where the learned trial, judge, in stating what it was necessary to prove, said that, before there could be a recovery, the plaintiff must show, among other things, “ that the defendant or its servants was guilty of some negligence which was the sole cause of the accident and of the resulting injuries.” It is insisted that the court fell into the same error that was the cause for reversal on the previous appeal (27 App. Div. 10), but in this we think the counsel for the defendant •is mistaken. Upon the former trial the language was that “if the jury found that the accident was caused wholly by the negligence of the defendant’s servants, and the plaintiff was free from negligence, he was entitled to a verdict.” Although there is similarity in the language employed, the distinction lies in the fact that upon the former trial it was in no way qualified after the court’s attention had been called to it, and it, therefore, tended to mislead the jury to the detriment of the. defendant.
There is a difference besides in the way in which, the subject was presented. Here the exception was taken in a blind way, without the court’s attention being called to the point of the objection, after the .entire charge and after a great many requests had been granted or refused, and that the court was not apprised and was willing to obviate the objection if it had been pointed out, clearly appears from the judge’s language when the objection was made. ' “ I coupled that, certainly, with the absence of negligence on the part of the plaintiff, and it was an oversight if I did not do so.” Thus we have an intimation from the court that it. desired to state .the rule of law correctly, and the defendant did not point out in what other respect the charge, as made, was erroneous. .
Furthermore, the language to which exception was taken.occurs at the beginning of the charge, and it appears hy what followed that the learned court went over the whole ground in detail, and placed clearly before the jury the theory upon which, if any, the plaintiff was entitled to recover, and .they could hot possibly have been misled. Such theory, and the law applicable thereto, he stated as follows:
*398■“ If a rule like this is promulgated and reasonable, and proper care is exercised' for its enforcement, and those having charge of these matters call the attention of the servants of the defendant to this, and require them to obey it when' they see it is neglected, then it has fully performed its duty in that respect, although there may have beén occasional neglect by some of the defendant’s servants, even if the servant is not at once discharged from the employment of the defendant. If the injury occasioned through the negligence of a fellow-servant in disobeying a rule which the company used reasonable care to enforce, then there can be no recovery in this case, because it is a well-settled rule of law that where an injury arises by reason of the carelessness or the negligence of. a fellow-servant,' then the servant injured cannot recover of the defendant corporation * * * if you believe the plaintiff had no knowledge of the existence of any rule in question, and if you further believe that the rule had been habitually disregarded by the plaintiff’s co-employees upon the wheel spur for such a -length of time that the defendant’s officers, whose duty it was to employ and discharge defendant’s employees, knew, or ought to have known, in the exercise of reasonable supervision of the defendant’s business, that the rules w'ere habitually disregarded ; and if you further beliéve that the plaintiff was free from negligence, and that such violation of the rule by the defendant’s co-employees was the cause of the accident to the plaintiff, then the plaintiff is entitled to recover. The rule which was enacted by the defendant company was intended by the company, and understood by the men, to apply to all parts of the company’s road and tracks. Unless you find that there was some special exception in the case of this spur track, either by long-continued neglect to observe the rule upon that particular track, or for any other reason you'find it was not enforced upon that track, and ordinary care was.not taken for its performance for a long time, then you may find that that rule had been waived in regard to that particular track.”
The learned court then proceeded to specify the details that should be present in order to constitute a waiver on the part of the defendant, and it is impossible to reach any other conclusion than that, in a clear and full charge, the questions at issue were fairly presented to the jury.
*399Exceptions were taken to refusals of the court to grant the defendant’s requests to charge the jury as to what evidence was given by witnesses. These were properly ruled upon referring them to the recollection and memory of the jurors.
Our examination of the main charge and the manner in which the requests were treated satisfies us that if there was sufficient evidence, to present the question of the defendant’s liability to the jury, then every right of the defendant was carefully guardéd and protected by the court. .We are thus brought back to what is really the crucial question on this appeal, and which was presented on the motion, to dismiss the complaint, namely, whether the evidence was sufficient to justify a submission to the jury upon the plaintiff’s claim that,, although general rules had been made many years prior to the accident relating to all the tracks, the defendant knew, or from a frequent infringement should have known, that the rules were not. observed on the wheel spur track.
The court correctly stated the principle of law to be that—it being conceded that there were' rules — the mere failure of employees. occasionally . to disregard them would not render the defendant liable, but that the liability must rest upon the inference to be drawn from the testimony of those to whom the defendant had intrusted the enforcement of the rules, that they had been permitted to fail into disuse and to be persistently and habitually violated for a long period of time. Seemingly, it is as negligent for the defendant to be careless and indifferent in the enforcement of proper rules as it would be to neglect to make them, and the duty that rests on it is not fully discharged by merely formulating proper rules, for, unless insisted upon, they are useless. And although not bound to see that the rules are never violated, the defendant is not free from blame if no steps are taken to. have them ever observed. We think that the question of the defendant’s liability was properly submitted to the jury, and that, with their verdict, we should not interfere.
The judgment-should be affirmed, with-costs.
Patterson, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.