Carr v. North River Construction Co.

Follett, J.:

Appeal from a judgment, entered upon a nonsuit and heard upon a case containing all of the evidence.

In September, 1883, the West Shore railroad was being constructed by the defendant, a New Jersey corporation. John Carr, the plaintiff’s son and intestate, aged thirteen years, was employed by defendant to distribute drinking water to the workmen. For some months prior to the accident, a construction train had left the city of Syracuse every day at about 6.30 a. m., for the purpose of going to the gravel pits near Kirkville and about eleven miles east of the city, and distributing gravel along the line of the road between Kirkville and the city. Many of defendant’s workmen were accustomed to ride on this train to the places where they were to work during the day. For some time before the accident a hand car had preceded this train out of Syracuse. As before stated, the road was uncompleted, and like all roads did not and could not provide a turn-table at gravel pits, and, as is customary with all roads, backed the train when unloaded and drew it when loaded. As this train was engaged in drawing gravel from Kirkville west and towards Syracuse, it, according to custom, was backed when it was moving from Syracuse east towards Kirkville. September 19, 1883, this train was being backed east from Syracuse to Kirkville in the usual way, and was preceded by the hand-car as it had been for a long time. The hand-car stopped at De Witt, where the persons employed on it were engaged in constructing a switch. It was the duty of the persons using the hand-car to remove it from the main track before the arrival of the construction train, but they did not, and the construction train collided with the hand-car, derailing the train and killing plaintiff’s intestate, who was riding to his work with defendant’s other employees.

The plaintiff alleges that defendant was negligent: (1.) In backing, instead of drawing the work-train. (2.) In not furnishing its cars with check-chains. (3.) In not establishing pr.oper rules far conducting its business.

It is apparent, we think, that the first ground is untenable, for it would be unreasonable to have required defendant to maintain a turn-table at each gravel pit, and also at each place where the train was unloaded, so the train had to be backed one way, and it was safer to back it when unloaded and draw it when loaded, than to reverse the process. The plaintiff, his intestate and all of defendant’s employees knew; from daily experience, how the train was moved, and they accepted of the hazard.

The evidence does not disclose that the absence of check-chains caused or contributed to the accident, besides the plaintiff, his intestate and defendant’s employees must have known that check-chains were not in use upon these cars.

The plaintiff has not pointed out what rule should have been established which was not, that would probably have prevented the accident. The plaintiff’s evidence shows that rules were established, but what they were, whether sufficient or insufficient, does not appear. “ The conductor gets rules right along; I have seen the conductor have orders; they are always printed-type written, all the orders I got; I never saw any printed rules or regulations posted up outlie cars, and never saw any in the hands of any of the other brakemen.”

The plaintiff offered to prove that the Rome, Watertown and Ogdensburg Railroad Company had the following rules: £l 98. Conductors will not, under any circumstances, push cars ahead of their engine, except while switching at stations, or in case of gravel trains, when it is absolutely necessary to push cars, and then the utmost caution must be used, and trainmen must ride on the head-car ready to signal engineers at any moment.” Section Foremen: ££ 220. They must be careful about running hand-cars near the time of any train, and must'never take up a rail within twenty minutes of the time of any passenger train.”

The Rome, Watertown and Ogdensburg railroad was a completed road, and operated as such. Rule 98 permits gravel trains to be pushed, and provides that, in such a case, a trainman must ride on the head car. That was exactly what was done on this occasion as the plaintiff proved'. Whether this was in pursuance of a standing rule of the defendant was not proved or disproved. (j The only part of rule 220 applicable to this case is, “ they must be careful about running hand-cars near the time of any train.” The remainder of the rule is not important, for the defendant was not engaged in operating a completed road and in replacing rails in its track. Whether there was any rule upon this subject does not appear. It is apparent that upon a completed road definite and permanent rules may be established for the government of employees, which can be printed and furnished for their instruction; but when a road is in process of construction rules which would be proper for a completed road, or for part of a road in process of construction, might be quite unfit for another part of the road. No error was committed in rejecting these rules.

That the accident was caused by the negligence of a fellow-workman of the plaintiff’s intestate is quite apparent. Haver testified : “ The train was run on the day in question as it had been run for months prior to that time; the same as we always did.” Cary testified : “ I believe at that time we whistled one long toot for brakes; from the time of that toot, when we whistled at that thirteen hundred and odd feet from the place of this accident, the men at the hand-car had ample time to have lifted the car off the track; I know the heft of hand-cars; two men can carry it off the track, one at each end; four men can do it easily; the front end of the train was in full view of the place of the accident, when within thirteen telegraph poles, when the whistle was given; the men at the hand-car could easily have seen the train; it was the engine that was thirteen telegraph poles from where the hand-car was when first discovered and not the front end of the train; the train was thirteen cars long; the cars are about thirty-three feet long.” Dillon testified: “ I think that was ample and sufficient time for the men to have removed this hand-car from the track if they had taken it right up, four of them, if they did not get excited, scared; there is no trouble whatever about four men handling a hand-car; two men could lift it bodily; four men, of course, could do it quicker and more easily.”

Upon the whole case we think it clearly appears that the accident was occasioned by the negligence of the decedent’s fellow-workmen and that the plaintiff was rightly nonsuited.

Martin, J., concurred.