Charles E. Baldwin, Appellant, v. Schenectady Railway Company, Respondent

Charles E. Baldwin, Appellant, v. Schenectady Railway Company, Respondent. Third Department, March 13, 1907. negligence — injury to motorman by collision — failure of master to conform to rules. The plaintiff was a motorman on the electric railroad of the defendant and was injured by a head-on collision at night. Usually the defendant operated two tracks, but at the time of the accident a portion of one of the tracks was torn up for repairs, and cars passing in both directions were required to use one track for a short distance. The rules of the defendant required the motorman and conductor to follow the time tables as posted, and stated that they would receive notice of temporary changes in the time tables by notice posted the day before they became effective. The rules also required the motorman to obey the instructions of the conductor. The. time tables as posted required the run to he made in one hour, but through his conductor the plaintiff had been instructed to make the run in forty-five minutes during certain hours of the night, which schedule was never embodied in the time tables or notice thereof posted. The plaintiff, while running on the forty-five-minute schedule as directed, came into collision with a work car coming from the opposite direction upon the part of the road whore a single track was used. The operators of the work car testified that they had no notice of the change in schedule. On an appeal from a nonsuit, Held, that as the conductor and the plaintiff had been instructed to run on the forty-five-minute schedule, the jury would have been entitled to find that the master was responsible for the change in the schedule time; That when only one track became available for use by cars moving in both . directions it became the duty of the defendant to use reasonable precaution to protect its employees commensurate with the unwonted danger; That the jury would have been entitled to find that by changing the schedule time, without giving notice thereof to employees, the defendant bad violated' its own rules, and was liable. That although the headlight of the car had gone out, and. the plaintiff, unable to , fix it, had hung a red lantern in its place, he was not guilty of contributory negligence in failing to notify the conductor thereof. Appeal by the plaintiff, Charles E. Baldwin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 30th day of, December, 1905, upon a nonsuit granted by the court, on a trial at the Schenectady Trial Term. Lee & Senior [A. G. Senior of counsel], for the appellant. Daniel Naylon, Jr., and Edward C. Whitmyer, for the respondent. . [MAJORITY — Cochrane, J.:] Cochrane, J.: The defendant operates a double-track electric railroad between Albany .and Schenectady. The plaintiff, being in the service of the defendant as a motormau, was injured in a collision which occurred between four and five o’clock in the'morning of September», 1903. Asserting that the collision was occasioned by the defendant’s negligence, he .seeks by this action to recover damages for such injuries. At'the time of the accident and for several Weeks prior thereto and for a distance of a little more than half a mile near the Schenectady terminus of the road one of the tracks had been removed for the purpose of making repairs and consequently .at such time and place cars were being operated in both directions over one track. The collision occurred on this single'track between a passenger Car operated by the plaintiff traveling toward Schenectady and a work ear traveling in the opposite direction. • The rules of the defendant provided that conductors, and motormen should receive their instructions from the superintendent or his authorized representative; that the motormen were under the directions of the conductor and should obey his orders so far as reasonable; that conductors and motormen- should conform to time tables in running cars and be particular in making time points as laid out on the time cards ; that time tables would be posted at all stations for the government and information of employees; that employees would receive notice of temporary changes of timetables by the posting thereof at all stations; that they were expected to keep themselves posted concerning current time tables and all changes thereof; that new time tables would be posted on the day previous to their becoming effective ; that temporary changes of time tables were likely to occur at any time ; that special instructions would be issued from time to time as might be necessary and that such instructions posted on the various bulletin boards whether in conflict with the rules or not should be fully observed; that bulletin boards should be consulted before starting and .at the end of each day’s work; and that employees should always have a copy of the rules at hand while on duty and be familiar therewith. According to the time tables as published by defendant the running time between Albany and Schenectady was one hour. There is evidence, however, that for about a year prior to the accident a car known as the all-night car had been accustomed between twelve-forty-iive and six-forty-five o’clock in the morning to make the trips from Albany to Schenectady in forty-five minutes. Ro change was made in the time tables as published, nor, so far as appears, was any information promulgated as to the change in the running .time of this car. About three weeks before the accident plaintiff was assigned to'this all-night car hy the assistant superintendent of the defendant, who was accustomed to give instructions to the motormen and conductors as to the movements of cars. Plaintiff testified that he at that time asked the assistant superintendent about the car making the trips in forty-five minutes, and was by him referred to the conductor of the car for instructions; that the conductor told him to make the trips in one hour until twelve-forty-five in the morning and from that time until six-forty-five in forty-five minutes. Plaintiff immediately began making the trips pursuant to such instructions aiid continued to do so until the accident. According to the forty-five-minute schedule he was due at the place where the accident occurred. The complaint having been dismissed the plaintiff is entitled to the most favorable inferences properly deducible from the evidence. From the evidence that this all-night car for about a year had been accustomed between twelve-for'ty-five and six-forty-five o’clock in the morning to make the trips from Albany to Schenectady in forty-five minutes, and from tlie plaintiff’s testimony that the assistant superintendent of the .defendant,'who gave directions as to the movements of cars, when applied to by plaintiff for instruction's as to making the trips in forty-five minutes referred the latter, to the conductor who instructed plaintiff to so make the trips in forty-five minutes during tlie morning hours as aforesaid, it would have been a proper inference by the jury that the defendant had authorized or was responsible for such-change in the running time from one hour to forty-five minutes. The learned- trial justice properly held on this branch of the case that the evidence tended to show that the running time of this car had been changed by the defendant. He seems, however, to have been influenced in dismissing the complaint by the idea that there was no evidence that tlie crew of the work car had not been'apprised of the change in tlie running time of plaintiff’s car, or that such crew was proceeding on the theory that plaintiff’s- car would not arrive at the time and place of the accident. On the contrary, both the conductor and motorman of the work car testified that they had received no notice that the all-night car was being operated on the forty-five-minute schedule. It is true that after the learned trial justice had indicated the disposition which he thought should be made of the case the conductor of the work car was recalled and testified that for several days prior t-o tlie accident he had seen plaintiff’s car arrive ahead pf the published schedule time. But that did not tend- to show -knowledge on his part- that the running time had been changed by defendant. It was his duty to .proceed according to the time tables as published according to the defendant’s rules. His natural inference would be that plaintiff was running ahead of time and not that- tlie running time had been changed. He testified that according to the schedule time as published the work car would have- passed over the single track before plaintiff’s car was due to arrive. Of course as long as defendant operated its cars over double tracks throughout the entire length of its road there was little or no'' danger of an accident such as the one in question. But when.it began to operate its cars in opposite directions over the same track a new situation was created fraught with additional dangers to its employees. It then became the duty of the defendant to take reasonable precautions to protect its employees commensurate with such unwonted danger. It was incumbent on the .defendant either by the promulgation of time tables or by other suitable methods or regulations to operate its cars with a view to the safety of its employees. (Rose v. Boston & Albany R. R. Co., 58 N. Y. 217, 221; Slater v. Jewett, 85 id. 61, 71.) In Hankins v. New York, Lake Erie & Western R. R. Co. (142 N. Y. 421) it is said : “It is the duty of the master not alone to take reasonable care that the alteration shall be made known to the parties interested, but also to take reasonable care that the variation ordered and by which the trains are run shall not necessarily or probably lead to disaster when obediently carried out. Reasonable care in originating and formulating the order is necessary and is the duty of the master.” In the cases cited variations had . been made in the .schedule time in particular instances and for special reasons, but the principle certainly holds equally good where as in this case a permanent change in the schedule had been effected. The rules of the defendant as published were all that could be required. The defendant can be subjected to no unfavorable criticism because of the inadequacy of the rules. Its culpability rests in the fact that it disregarded and violated its own rules, if as the jury might have found it changed the schedule time of the plaintiff’s car while not publishing such change or giving notice thereof in any manner to its employees. Plaintiff of course knew that no change had been made in the schedule time as published. But he had a right to assume that in some other way the defendant was observing the duty which it owed him. The evidence is that prior to twelve-forty-five o’clock in the morning, men with signals were stationed at each end of the single track to guard against just such an accident as this. Plaintiff might properly assume, that in some other appropriate way some means were being taken by defendant to protect him from such- an accident. During all the time that this car was-being run on a forty-five-minute schedule the defendant through its published time tables was informing its employees that the running time was one hour, and seems to have taken no precaution to ■ counteract the information th.us, promulgated; I ■think, the- question of - defendant’s - negligence.-should- have-: been submitted• to the jury, . While making the trip in question the headlight, attached to-plaintiff’s-car-went out. He stopped, attempted without, avail-to. adjust it, hung out a red lantern in place'thereof, and- then - proceeded. It is now claimed that lie ivas negligent in not informing his conductor of the-absence of the head-light. ; There is no suggestion as to what the conductor would or could have' done which was' not done by plaintiff; nor is. it apparent how this negligence of the plaintiff -if such it was, contributed to the accident'; The judgment must be reversed and a new trial granted; w-itli costs to. the appellant-to abide the event. . All concurred; Kellogg, J., not sitting. Judgment reversed .and new trial granted, with costs to. appellant to abide event.