Opinion
June, 1904.
John F. McIntyre, for the appellant.
John W. Weed, for the respondent.
The charge of negligence against the defendant which was submitted to the jury was its failure to make, promulgate and enforce suitable and sufficient rules for the guidance of its employees with reference to their own safety in moving cars and making up trains. The learned trial justice instructed the jury that as matter of law the rules quoted in the statement of facts were applicable to the movement of cars in making up trains. It would seem from some of the expressions contained in the charge that the court intended to instruct the jury that these rules, if enforced, were sufficient; but the court declined to rule that the rules were sufficient and their sufficiency was left, as a question of fact, to the determination of the jury and counsel for the defendant excepted. This, we think, was error. Assuming that the rules forbidding pushing cars, except in cases of accident and then requiring a man on the rear platform, and requiring a motorman to regulate the speed so that he could stop in the distance that he could see ahead, were applicable to the movement of cars in making up trains, it is manifest that if they, or any of them, had been observed the accident would not have happened. It was not shown that any other rules that would afford greater safety to the employees were in use under similar circumstances by other railroads, nor were experts called to show the necessity or practicability of any other rules. In these circumstances to leave the question of the sufficiency of such rules to the jury is to permit them to speculate without any guide as to the necessity for other rules; and there may have been no uniformity of opinion on the part of the jurors as to the nature of the other rule or rules that they were left to find should have been adopted and promulgated. ( Berrigan v. N.Y., L.E. W.R.R. Co., 131 N.Y. 582; Morgan v. H.R. Ore Iron Co., 133 id. 666; Corcoran v. N.Y., N.H. H.R.R. Co., 58 App. Div. 606; Kapella v. Nichols Chemical Co., 83 id. 45; Larow v. N.Y., L.E. W.R.R. Co., 61 Hun, 11.) We are of opinion, however, that these rules did not apply to the making up of trains. They appear to be applicable only to the movement of trains after the same are made up. The defendant rested without offering any evidence. Whether it had any rules regulating the making up of trains or whether any rules regulating the making up of the same are in use by other roads or are practicable was not shown. If these rules are applicable to the making up of trains the evidence would warrant the finding that they were customarily violated, and that the defendant was chargeable with knowledge of such violations. Doubtless this is the theory on which it was intended to submit the case to the jury; but, for the reason already stated, it is not at all certain that the verdict was rendered on that theory. The errors already pointed out require a new trial, but in awarding the same we deem it proper to make some further observations. The court, submitting the case to the jury, instructed them upon the law concerning the assumption of risks by an employee as the law existed prior to the enactment of the Employers' Liability Act (so called). No new liability is created by that act for the failure of an employer to make proper rules and regulations for the safety of his employees. This action, therefore, is based upon the common law. It has been decided that sections 1 and 2 of the Employers' Liability Act (Laws of 1902, chap. 600) apply only to causes of action arising thereunder; but it has not been decided that none of the provisions of the act apply to causes of action for negligence in general regardless of whether they arise under the statute or at common law. Section 3 of the act is manifestly of general application to all actions by servants against masters for negligence upon causes of action arising thereafter. It prescribes a new rule with reference to the assumption of risks more favorable to the employee than the rule that previously obtained, and we are of opinion that it is applicable to this case.
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
PATTERSON, INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.