On the 5tli day of April, 1901, plaintiff’s intestate was, and for some time previous had been, employed by the defendant as a locomotive fireman, At about four o’clock in the morning of that day *76a light engine upon which he was fireman started from the city of Oswego going west on defendant’s railroad, running as the second section of train No. 110, or the “Wabash Flyer,” so called. Such engine or second section following the flyer was required by the rules of the defendant to keep at least five minutes behind it. Upon the front of the engine drawing the flyer or train No. 110 there were two green lights, one on each side, which by the rules of the company indicated that it was being followed by a second section. At the time in question a freight train headed east was standing on a siding at the Hannibal station. The crew of such freight train, consisting of the engineer, fireman, conductor and two trainmen, did not observe the green lights in front of the engine of the flyer which indicated, as we have seen, that a second section was following, and immediately after the flyer passed the station at about four-forty-five a. m., the freight train was run onto the main track and was proceeding east on its way to Oswego. It had not gone on the main track to exceed twenty or thirty rods when the light engine upon which plaintiff’s intestate was fireman came around a curve and came into collision -with the engine of the freight. train and he was injured in such manner as to cause his death a few days later. The evidence tends to show that the crew of the freight train failed to observe the green lights on the engine of the flyer and thus to note that a second section was following, because such crew, or at least the fireman, whose especial duty it was to look out for and observe the same, was asleep, and that the accident resulted because of his failure and that of his associates to observe such lights, and because the crew of the freight train did not know that a second section of train No. 110 was following the first section, and, therefore, went onto the main track directly in front of the rapidly approaching second section, and so notwithstanding the evidence tends to show that the whistle upon the engine of the flyer was sounded in such manner as to indicate that it was approaching and was to pass the Hannibal station.
There is no suggestion that the rules of the defendant governing the operation of the trains in question were defective; that the employees upon both trains were not entirely familiar with them, or that they were not entirely adequate to protect such employees against an accident like the one in question if they had heeded and *77obeyed them. Neither is there any suggestion in the evidence that any of the employees were not competent and experienced railroad men.
The sole ground of negligence on the part of the defendant urged by the learned counsel for the appellant is that the defendant had violated section 7 of chapter 415 of the Laws of 1897 in that it had required and permitted the conductor, engineer and fireman in charge of the freight train to work for more than twenty-four consecutive hours ; that as a result of such continued work those men became exhausted, incapable of properly discharging their respective duties, and for that reason failed to observe that a second section was following the first section of the flyer or train No. 110, and that the accident resulted because of such exhaustion and incapacity. Plaintiff’s counsel in his points does not argue or claim that the charge of actionable negligence against the defendant can be sustained upon any other theory.
It appears that the crew of the freight train were called for duty in the city of Oswego, where they resided, about or shortly before three o’clock in the morning of the fourth day of April, to prepare to take the freight train in question, composed of an engine, tender and fourteen cars, to Wallington, a station on defendant’s road thirty-five miles westerly from the city of Oswego. • The freight train was not got ready until seven-twenty a. m., when it started with its regular crew. The only work to be done in going from Oswego to Wallington was to cut out and leave at Hannibal one car. The train reached Wallington about noon and while there the crew got an order to do some switching, which they did. After such switching was done they waited for orders and finally left for Oswego at six-fifteen p. m. upon receiving orders so to do, then having a train composed of an engine, tender, twenty cars and caboose. At Wallington two additional brakemen were taken on so that on the return trip the crew consisted of the engineer, fireman, conductor and four trainmen. Stops were made at the different stations between Wallington and Hannibal and switching done. The train arrived at Hannibal about two a. m. Freight was unloaded there and several cars were switched. After that work was done the freight train went onto the siding to wait for the flyer to pass; the conductor and trainmen went into the caboose, the engineer and. fireman remained on the engine, and, as we have seen, the evidence tends to show that the fireman, and perhaps others of the crew, went *78to sleep. At least, when the flyer passed none of the crew observed the green lights on the engine, which indicated that a second section was following, and so moved the freight train out upon the main track and started for Oswego, when, after proceeding a few rods, the collision occurred.
The run from Oswego to Wallington, a distance of thirty-five miles, as a rule did not take to exceed three hours. The round trip was usually made in much less time than upon the day in question. Upon that" day additional time was consumed because of an accumulation of freight at Wallington and other stations, resulting from a severe snow storm which had occurred some time previous. The crew of the freight train before leaving Oswego on the morning of April fourth had had ample time and opportunity for rest; so far as appears, the full time, eight hours, mentioned in the statute. None of them complained of having been' overworked or that they were exhausted, and no complaint of that kind was made by any member of the crew while on the trip and before the accident. The defendant had plenty of other men in its employ to take the place of any member of the crew of the train in question if he had asked to be relieved, dr if informed that he was exhausted' or for any reason incapacitated from performing his work, and upon such information coming to the defendant it always furnished additional or other men to operate its trains.
The foregoing facts, which we think the evidence tended to prove, it is urged establish actionable negligence on the part of the defendant when considered in connection with the provisions of the statute to which attention has been called. (Laws of 1897, chap. 415, § 7.) The act provides as follows: “No person or corporation operating a line of railroad of thirty miles in length or over, in whole dr in part within this State, shall permit or require a conductor, engineer, fireman or trainman, who has worked in any capacity for twenty-four consecutive hours, to go again on duty or perform any kind of work, until he has had at least eight hours’ rest.”
It is well settled that a violation of a statutory duty or requirement is evidence of negligence and gives a cause of action in favor of any one entitled to its observance who is injured by its breach. (Marino v. Lehmaier, 173 N. Y. 530; Willy v. Mulledy, 78 id. 310; Huda v. American Glucose Co., 154 id. 474.)
*79We think, if the statute in question is given a fair and reasonable interpretation, it cannot be said upon the evidence in this case that the defendant was guilty of a violation of its provisions. Its purpose was to prevent a railroad company from sending out a train with a crew of men who had not had at least eight hours of rest after having worked for twenty-four consecutive hours. We think the Legislature did not intend to provide that if a railroad company sends out a train manned with a proper crew to make a trip which is usually made in twelve hours, but which by reason of "unusual or unforeseen conditions occupies more than twenty-four hours, it should be under the necessity of stopping the train at any point where it might be at the expiration of such twenty-four hours and supplying it with another crew in order to relieve itself from the charge of violating the statute. In the case at" bar was the duty imposed upon the defendant to hold the freight train in question at Hannibal until it could send another crew to bring it to Oswego, a few miles distant ? It seems to me that such interpretation would be unreasonable in the extreme. The defendant was not liable simply because it permitted or directed the crew of the freight train to finish the trip and bring their train home. If, after such trip was finished, the company had required or permitted any one of such crew to perform any kind of work, it would undoubtedly have been a violation of the statute. The crew of the freight train were engaged, we will assume, for more than twenty-four consecutive hours attempting to make a round trip of seventy miles; they were occupied for such length of time because of unusual conditions which the defendant could not reasonably anticipate, and we think it was not chargeable with a violation of the statute and, therefore, guilty of negligence because it permitted such crew to attempt to complete the trip and bring the train to its destination, even after the lapse of such period of twenty-four hours.
It follows, I think, that the nonsuit was right, and that the judgment appealed from should be affirmed, with costs.
Stover, J., concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.