Burke v. Syracuse, Binghamton & New York Railroad

1. Injury to Servant—Negligence in Employing Infant. In an action against a railroad company for the negligent killing of an engineer, it appeared that a coal train had taken the side track to allow a passenger train to pass. The switchman went out from the station to signal the passenger train, and, being suddenly seized with a mistaken belief that the switch was set wrong, impulsively threw the switch, diverting the passenger train to the side track,"and killing the ■engineer. The switchman was 17 years old, and had been instructed as to his duties, and fully understood them. Held, that the evidence was insufficient to show that the company was negligent in employing the switchman, and that a nonsuit was properly granted. Mann v. President, etc., 91 N. Y. 500, distinguished. 2. Same—Rules to Govern Servants. In the absence of evidence that a rule was necessary to prevent an employe from opening the switch on an improper occasion, the failure of the company to adopt such rule is not sufficient evidence of negligence to carry the case to the jury.

Appeal from, circuit court, Onondaga county. Action by Mary Ann Burke, as administratrix, against the Syracuse, Binghamton & Mew York Railroad Company. From a judgment entered on a nonsuit, plaintiff appeals. The action was brought to recover damages for an alleged negligent killing of plaintiffs intestate, who was an engineer in defendant’s employ, on the 3d day of November, 1890. Rock Out is a station some three miles south of ■Syracuse, on defendant’s single-track road running from Syracuse to Binghamton. It is a telegraph station, and there is a siding there, so arranged that trains may pass each other. The highway from Syracuse to Jamesville crosses the track near the station, where there was a cabin, of two rooms, in one of which were telegraphic instruments, and the other room was sometimes used for a post office. The siding leaves the main track some half a mile to the north of the cabin, and joins it again a few rods to the south. At this .point a “Safety Wharton Switch” was in use at the time of the accident, which has a lever, with a heavy iron ball at tine end, which lies upon the .ground when the main track is closed. To connect the main track and the siding, this lever is raised to a perpendicular position and held; otherwise the weight of the ball drags it to the ground, and closes the main track. Martin Clark was in charge of the station at the time of the injuries, and it was his duty to report trains, and to receive and carry out telegraphic instructions from the train dispatcher at Syracuse, and to flag the crossing, and to attend to some other duties. His time of service was from 7 o’clock in the morning until 6 o’clock in the evening, and during that period some 10 trains passed the station. About 6 o’clock P. M. on the 3d of November, 1890, a coal train going southward halted on the side track about 25 feet from the switch, and awaited the passage of the regular passenger train from the south, upon which the deceased was the engineer, going northward. The train men visited the shanty of the operator, and chatted with him until he saw the passenger train approaching from the south, when he left the shanty with his lantern to signal the train in accordance with his custom. Having reached the crossing he suddenly was seized with the thought that the switch was set wrong for the passenger train, and impulsively, with a view of preventing a catastrophe, he rushed up to the switch, and lifted the lever thereof, and held it. in position long enough to divert the train from the main track into the stationary locomotive of the coal train, thereby causing the death of the plaintiff’s intestate. As soon as Glark saw the locomotive take the side track he realized what he had done, recovered his presence of mind, and dropped the lever, thus saving the coaches containing the passengers on the main track. Clark was 17 years of age on 18th of August, 1890; was tall, large and robust, and appeared to be 19 years of age. He came from Auburn, where he had lived with his father within 200 feet of a railroad, and had for 8 years, and “was familiar with the railroad tracks, and ha.d frequently seen sidetracks and switches operating.” He attended the public schools until he was 16 years of age, and, having decided to become a telegraph operator, studied for a year and a half under the tuition of the train dispatcher at Auburn, and became familiar with receiving and sending dispatches, and for a month or more worked at a railroad station at Auburn, familiarizing himself with practical railroad work, when he applied to the defendant for employment. Mr. Ferris, defendant’s agent, made some examination of him, and employed him, and sent him to Tully, where he remained for a month, performing active service, sending and receiving railroad and commercial telegrams, signaling trains, reporting cars, and doing other work incident to the station duties. From there he was detailed for duty at Rock Cut, to take the place of one Fisher, a young man 19 years of age, who had for considerable time conducted the business of the station successfully. Upon arrival at Rock Cut, Clark was informed by Fisher as to the several duties devolving upon him, and among others the duty of opening the switch was explained to him, and all its workings, and that it was to be opened in the morning to permit a north-bound coal train to be sidetracked, in order to allow a passenger train, which awaited its arrival on the main track, to pass south. He informed Mr. Ferris, his superior, that Fisher had fully informed him as to the duties, and that he well understood them; and he successfully operated the switch each morning prior to the accident, locking it each night; and he testified that “at the time of the accident the main track was unbroken before I lifted the ball, and, if I had left it alone, the express train would have gone right by as usual. * * * When I got there I knew, as a matter of fact, that the main track was unbroken, and that lifting tile ball would break the main track, and send the express train onto the branch. That I didn’t think of at the moment. * * * I fully understood its operation. There was nothing difficult to -understand about it.” Hoyt, who had previously been employed by defendant at Rock Cut, and who had been engaged in railroad business for 10 years at different stations testified that he was familiar with the operation of Wharton switches and other switches; and, also, “A man of ordinary intelligence ought to learn to open and shut the switch after it was shown him a few times,—ought to be able to attend to it in short order. If he did operate it, and operate it right, that would show that he had sufficient experience in that line.” At the close of the evidence the defendant moved for a nonsuit upon the grounds: First. “That the plaintiff has not established sufficient facts to constitute a cause of action.” Second. “That the evidence fails to show any actionable negligence on the part of the defendant.” Third. “That the evidence shows that the death of the plaintiff’s intestate was occasioned through the negligence of a fellow servant of the deceased.” Fourth. “That the plaintiff’s intestate, by accepting employment from the defendant, assumed the risk of any negligence of which a fellow servant might prove guilty.” Fifth. “That the evidence fails to show that the wrongful act of the boy Clark could in any way have been foreseen by the defendant, or that there was anything from which the defendant could have anticipated that this accident would have occurred or could have arisen.” Thereupon the court intimated that there was no case made for the jury. Thereupon the plaintiff asked “to go to the jury upon the question whether the railroad company was negligent in the employing of this man Clark at that place; whether it exercised due care in the selection of fellow servants of the deceased.” Second. “Upon the question as to whether the railroad company employed a sufficient number of men at this point; whether it was not negligent in failing to employ a sufficient number of men.” Third. “Whether it was negligent in failing to adopt and notify Clark of the existence of the rule requiring the switch to be locked, and the requiring a switchman to be at his post upon the passage of trains on the main track.” The requests were refused, and thereupon the court directed a nonsuit, and judgment thereon has been entered in favor of the defendant.