Upon the occasion of the injuries no duty rested' upon Clark to open the switch. His act in raising the ball and breaking the main track was voluntary, thoughtless, and mistaken. Nothing appears in the case showing that he had not physical power to perform all the acts and duties required of him at the station, or that he was not mentally fit for the position assigned to him by the defendant. Judged by the rule laid down in Coppins v. Railroad Co., 122 N. Y. 557, 25 N. E. Rep. 915, the evidence fails to show a want of competency on the part of Clark to perform the duties, required at the station.
The observations made by the learned counsel for the respondent seem appropriate and pertinent, where he says:
“The defendant could not make a psychological examination of Clark, or delve into the secret recesses of his brain, to ascertain whether at some future period he would for an instant become the prey of a delusion, and work destruction. It was no more bound to anticipate this unnatural occurrence than it would have been the act of Clark had he in a moment of temporary aberration drawn a pistol and killed the plaintiff’s intestate.”
In Harvey v. Railroad Co., 88 N. Y. 486, it was said:
“The duties of a switchman are not complicated or difficult, and there can be no doubt that on the day in question Baldwin was entirely competent to perform the duties imposed on him. It appears from his own evidence that his failure to close the switch on the day in question did not arise from any inability on his part to perform the work he was set to d.o, but that such failure was the result of sheer inattention and carelessness on his part. He was-a man of 56 years of age, and there is no suggestion that he was not possessed of ordinary intelligence.”
' After further commenting on the circumstances of that case, the court observed:
“There is no evidence in this case which warranted the jury in finding that any act of neglect on the part of the defendant contributed in any manner to produce the injury which resulted in the death of plaintiff’s intestate.”
We think the rule there laid down is applicable to the facts before us, and we are of the opinion that the evidence was" insufficient to warrant the jury in finding that the defendant had been negligent in employing Clark, or leaving him in charge of the station at the time of the accident In Sutherland v. Railroad Co., 125 N. Y. 739, 26 N. E. Rep. 609, it was said:
“We think, Trader the circumstances, the jury could not be permitted to infer that Johnson was incompetent in fact from his age only, or that the company was negligent in employing him, or to speculate whether, if the operator had been a man of mature years or judgment, he would have been less likely to have committed the mistake which Johnson did.”
We think Mann v. President, etc., 91 N. Y. 500, differs from the case before us, as in that case there was no reasonable doubt of the fact that Townsend was “an incompetent, and unsuitable person to discharge the important and responsible duty of flagman.” *461And it appeared he had not been informed óf, and did not know of, the rule requiring the use of torpedoes, and that he had never flagged a train in the night except the second night before, when he was acting as flagman on a train, on which occasion he failed to obey orders, and it was therefore held—
“That the evidence justified the submission to the jury of the question as to the negligent performance, by defendant, of the duty it owed to its servants to use due care in the selection of competent coservants.”
Nor do we think the absence of more men at the station "contributed to produce the injury complained of.” Harvey v. Railroad Co., supra. It appears that Clark had sufficient time to do all 'the work that was required of him at the station, and that, at the time of the accident, he was under no obligation to do anything with the switch. He was at leisure as the train approached, and, if he had remained chatting with the trainmen on the coal train, no accident would have taken place.
Nor do we think the defendant was negligent in not having adopted a rule as to the switch in question, as it did not appear that the defendant, in the exercise of reasonable care, could have foreseen the necessity of such a rule. Morgan v. Iron Co., 133 N. Y. 666, 31 N. E. Rep. 234; Berrigan v. Railroad Co., 131 N. Y. 582, 30 N. E. Rep. 57. In the latter case it was said:
“It cannot be assumed that it can by rule guard against and prevent every injury to employes.”
No evidence was given tending to show that such a rule was necessary to prevent an employe from opening the switch on an improper occasion. Clark had a key to the switch, and if it had been locked it is mere conjecture to say that he would not have reached the switch in time to make use of the key, even in the event he had found that the switch was locked. We think the evidence was insufficient to carry the case to the jury upon the ground that the defendant had been negligent in omitting to adopt a rule or rules to guard against such an accident as the one that occurred. It was said by this court in Forey v. Railroad Co., 12 N. Y. St. Rep. 201:
“It is the duty of an employer engaged in a complex business to establish rules for the protection of employes. But the business in which this plaintiff was engaged was not complex, and it is difficult to see how any rule could have given him more information than he might easily have obtained by ordinary attention to the operations in which he was engaged.”
That case was affirmed in 122 N. Y. 667, 26 N. E. Rep. 754. We may add that it is difficult in the case in hand to discover any solid ground upon which it may be averred that the defendant was negligent in not having promulgated a rule requiring the switch to be locked on each and every occasion when the same was nsed. It appears by the evidence that Clark was accustomed to lock it on leaving it nights, and that custom was apparently to prevent the switch being interfered with by outsiders when no one was present to detect the interference. We are of the opinion that the trial judge properly refused to submit any of the questions to the jury *462mentioned by the plaintiff at the close of the evidence, and that no error was committed in directing a nonsuit.
Judgment affirmed, with costs.