Mintram v. New York, Ontario & Western Railway Co.

Woodward, J.:

The facts which the jury might properly find under the evidence in this case are briefly as follows: The plaintiff Was employed by the. Erie Railroad Company as a locomotive engineer in running a train over its Crawford branch from Middletown. The Erie Railroad Company has a trackage .arrangement with' the New York, Ontario and Western Railroad Company ¡by-which the former operates its Crawford branch trains over about three miles of the latter’s track in and about Middletown, and it was conceded ón the trial that the plaintiff and other employees of the Erie Railroad Company were governed by the rules and regulations of the Ontario and Wester'n Company while using its tracks. On the day of the accident resulting in the plaintiff’s injuries, the Erie train Was started from the Main street station of the Ontario and Western Company and was run to the Wickham avenue station, about half -a. mile distant, which is the principal station. The Erie train w¡as bou-nd north, and before leaving the Main street station it was known that train No. 12 on the Ontario and Western line was late, and the latter’s yardmaster directed the plaintiff to run to 'the Wickham avenue station where -lie would meet train No. 12. The yardmaster, who is, by rule 189 of the ^Ontario and Western Company, to “have charge of the yards where trains are made up, the movement of all trains therein and the force employed,’'’ got dn board the train drawn by the engine in charge of the plaintiff and rode to the Wickham avenue station, where the yardmaster appears to have gone into the station with the conductor in charge Of the plaintiff’s train to inquire for orders. In the meantime the plaintiff had - been engaged in getting his oil cups regulated for the trip and had jiust started, for the station When he was met by -the conductor and yardmaster, and by the latter-was directed to get on his engine and run it to a certain switch because of the fact that train No. 10, another Ontario and Western train, was On time' and had the right of way over the single track railroad. Acting under these orders of the yardmaster the plaintiff ran the engine to the point indicated, the yardmaster personally accompanying the engine and opening and closing, the'switch after the train had passed in on the siding, which appears to-have been the main switch-leading tó the extensive, yards of' the railroads at this point. When his engine had come to a standstill, after getting out t>f the way of No. 10, the plaintiff climbed down from his engine, leaving the fireman at his post, and went into the combination car just back of the engine, to inquire of the train conductor» as to the whereabouts of train No. 12. This combination car was used as a passenger coach in one end, the other end being devoted to a smoking compartment, baggage and express room, and the plaintiff stood talking with the conductor near some boxes which stood upon the floor. While in this position a switch engine attached to a string of cars backed down the switch upon which the plaintiff’s train had' been placed by the order of the. yard master and crashed into the engine, causing a sharp impact with the car in which the plaintiff was standing, throwing him over the boxes and producing injuries of a serious and probably permanent character.' This switch engine was concededly in the control of the defendant’s servants, and there is no question raised that the act of the defendant’s servant in running this switch engine against the train of the plaintiff was negligent, but the jury having found in favor of the plaintiff, it is urged on this appeal that the latter was guilty of contributory negligence in that he failed to obey the rules promulgated by the defendant for the operation of trains.

We are persuaded, however, that the contention of the defendant is without merit, as an examination of the rules, in connection with the rule which gives the yardmaster control of trains within the yards, convinces us that they have ho relation whatever to such a situation as that disclosed by the evidence. These rules, so strongly relied upon by the defendant, were designed for the operation of trains upon the main line outside of yards under the control of yardmasters, and when the plaintiff had safely placed his engine and train upon this siding, it was not negligent in him, as a matter of law, to leave his engine with the fireman and go back into the combination car for the purpose of making inquiries which were essential to the safety of the running of the engine. It was his duty, as a prudent and careful man, to know where train 12 was before leaving the switch. He had been placed there for the purpose of passing train 10; if train 12 had passed, he was in a position to go on with his trip after train 10, which was then coming down the main track, liad passed, and there is no rule set forth in the evidence which required him to send out a flagman, or to notify the fireman that he was going to leave the engine for a few moments;. He had, by' the direct orders of the person authorized to act, been placed in this position of safety, and- while his engine was standing there it was proper that he should get the information necessary for governing-his future conduct. He Vas not bound to anticipate that the defendant, through its servants, would back a train of cars down upon his engine, especially as under the circumstances such an act would operate to shove cars out upon the main track in front of train 10, which appears to have been approaching, and already in sight. . When the yardmaster, placed the plaintiff’s train upon the siding-there was an implied promise on his part that he would, in the exen cise of his control of the yard, protect the plaintiff from being run into by trains in his charge, and' the rules which were designed for the general operation of trains upon! thje- main line had no application to such a situation within the defendant’s yards.

The learned court at Trial Term submitted all of the questions to the jury in a manner to protect the rights of the defendant, and the verdict ought not to be disturbed.

The judgment and order appealed from should be affirmed, with costs. • ,

Present: Hirsohberg, P. J., Woodward, Jenks, Rich and •Miller, iJJ. ' ¡ ■

■ . Judgment and order unanimously, affirmed, with costs.