Opinion
November Term, 1900.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.
The essential facts of this case so fully appear in the reported decision thereof upon the former appeal ( 13 App. Div. 467) that it will be unnecessary to detail them with much particularity at the present time. Suffice it to say, that while upon the last trial the plaintiff's evidence as to the failure of the defendant to promulgate its rules or enforce their observance by its employees was somewhat strengthened, the fact nevertheless remains, and as to this there is and can be no dispute, that the rules adopted by the defendant were entirely reasonable and well calculated to serve the purpose for which they were designed, viz., the protection of its servants who might be engaged in repairing cars while the same were standing upon either a main track or siding. Moreover, it further appears that these rules were printed upon the back of some 2,000 time tables whenever new ones were issued; that as thus printed the time tables were kept for distribution at the various shops and offices of the defendant; that they were actually furnished to a large number of its engineers, firemen, conductors, trainmen, trackmen and other employees, and were obtainable by any employee desiring them; that the plaintiff's intestate, who at the time of his death had been in the service of the defendant about two years, was a foreigner, but slightly acquainted with the English language; that he was informed that there was such a rule and saw it put into operation frequently when he was at work upon cars which stood upon the defendant's tracks; that Young, a witness called by the plaintiff, had become familiar with such a rule while in the service of other railroad companies, and assumed that the defendant had adopted and promulgated a similar one; that, acting upon this assumption, he had repeatedly protected himself in the manner required by the rule while in the defendant's service; that at the time of the accident he and Moeller were jointly engaged in making some slight repairs to a car; that Young knew that in order to conform to the rules of the company it was the duty of either Moeller or himself to protect themselves by placing a red flag upon each end of the car upon which repairs were being made; that no flag was so placed by either of them, and that the only reason such precaution was omitted was because they supposed the repairs which they had undertaken to make could be completed within so short a space of time as to render the same unnecessary. In view of these facts, the greater portion of which are practically undisputed, we do not see how the case differs materially from the one presented upon the former appeal, and the rule then established by this court, which seems to be in harmony with a decision of the Court of Appeals upon facts not unlike those of the present case ( Corcoran v. D., L. W.R.R. Co., 126 N.Y. 673), would consequently have justified the learned trial justice in granting the defendant's motion for a nonsuit. His failure so to do we think was error which requires that a new trial should be granted. All concurred.