Summary
In Simpson v. Central Vermont R. Co. (5 App. Div. 614) plaintiff's train was running on telegraph orders and was entitled to the right of way, and he contended that if a rule had been adopted that all trains should be kept off the main line while detained at stations awaiting orders, the collision would not have occurred.
Summary of this case from Niles v. N.Y. Central H.R.R.R. Co.Opinion
May Term, 1896.
C.A. Kellogg, for the appellant.
Louis Hasbrouck, for the respondent.
The plaintiff insists that he had the right to go to the jury upon the question whether the defendant was negligent in sending out engine No. 76 improperly equipped as to its headlight. The defect was that the wick was too short. A supply of new wicks was kept by the defendant at Malone, from which station engine No. 76 was dispatched westward to Ogdensburg, stopping at Norwood. A new wick to replace an old one is a supply and not a repair, and by the defendant's rules the engineer of engine No. 76 should have seen that the supplies which the defendant had provided and placed within his command were ample for the trip. To provide these supplies for use was the master's duty; to take them as they were needed for use was the servant's duty. ( Cregan v. Marston, 126 N.Y. 568; Harley v. Buffalo Car Mfg. Co., 142 id. 31; Kaare v. Troy Steel Iron Co., 139 id. 369; McDonald v. N.Y. Central H.R.R.R. Co., 63 Hun, 587.) This request was properly refused.
The plaintiff also insists that he had the right to go to the jury upon the question whether the defendant was not negligent in failing to promulgate sufficient rules for the meeting of wild trains at night. The difficulty does not appear to be with the rules, but in the failure of the defendant's servants to obey them upon this occasion. Engine No. 76 should have taken the side track after receiving notice that it was to pass No. 89 at Norwood. The engineer or conductor of engine No. 76 was too slow about it. Engine No. 89 ought to have been under the control specified by the rules from the first switch eastward. If the engineer had had it under such control he could have stopped it in seventy feet. It may well be that he relaxed his observance of the rule because he did not see the light in the head lamp of No. 76, or mistook it when he first saw it for a station light or some other, but such relaxation was none the less a violation of the rule.
Plaintiff's counsel contends that the defendant might have made further rules, and he suggests one, namely, that all engines and trains should be kept off the main line while detained at stations awaiting orders.
So long as the rules which are promulgated will, if observed, secure safety, it is wiser to leave the making of new rules to the company.
The judgment is affirmed, with costs.
All concurred.
Judgment affirmed, with costs