Sheridan v. Long Island Railroad

40 A.D. 381, 57 N.Y.S. 1075

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1899
• Status: Published

Opinions

Ingraham, J.:

On March 2, 1895, the plaintiff applied to the defendant for ■employment as a “ helper on the track ” by a written application which contains the following clause: “I do hereby agree as a condition of my employment to obey strictly all the rules, and regulations ef the Long Island Railroad Company or the New York and Rock-away Beach Railway Company, now in force or that may be issued from time to time for the government of its employees. * . * * ■ I also certify that I can read and write the English language; that I personally filled out this application, and I make the same snbjec to the terms of the Employees’ Agreement hereto attached.

“(Signed) ROBERT W. SHERIDAN,”

Attached to this application was the “ Enrployee’s Agreement,”' also signed by the plaintiff, which contains- the following clause: “ It is expressly agreed by all employees of the Long Island Railroad Company, and of the New York and Rbckaway Beach Railway Company, in consideration of their employment, that the rules and regulations printed in the rule booh of said Companies, as noió in force, a/nd as they may be amended from time to time, shall be, and they are hereby made, binding on each of said employees, as well as cdl orders, verbal or written, issued from time to time by the Companies, their officers or heads_ of .departments. And all applicants for employment, and all employees, expressly agree to comply with all such rules and regulations, and to obey all such orders promptly.” Upon this application the plaintiff was employed by the defendant, and went to work on June 1, 1895. He continued in the employ of the defendant inspecting and repairing cars upon the tracks of the defendant company at its depot in Long Island City, and was under the car inspector, Faber, or Ms assistant, Rutan. There was no foreman attached to the gang with which the plaintiff worked, which consisted of three or four men of the same grade. The plaintiff did ■ not look to either of the other men for instructions, but testified that every man-did liis own work. “ There was no foreman. No one of us three took any charge of the work in the absence of the foreman;. every one had to help himself.” He further testified that when they had cause to change the wheels on a car they would first jack .up-the body of the car until they lifted the car off the axles. - “No particular man took charge of the jacking; whoever was first there would attend to that part of it.” Clavin, one of the men working with the plaintiff, called as a witness for plaintiff, testified that the plainfiff had worked .from the first day of the month with his gang; that there were two or three or four men in the gang, but that it was not a fact that one of the men took charge of the gang, or acted as foreman.

On the twelfth day of June, about ten o’clock in the morning, the plaintiff was at work repairing a car which was on track No. 3, a side track upon which cars were placed when needing to be repaired,' when Rutan, assistant car inspector, ordered him with Clavin to put new wheels on car No. 227 which was'on track No. 4, called the “ wheel spur 'track.” The plaintiff and Clavin went together to this car, followed by Rutan. Clavin reached the cars first, when he found the car upon which the new wheels were to be placed attached to another car. Clavin went upon the platform of one of the cars to get the riders between the two cars apart. Sheridan (the plaintiff) then came along and went underneath the car witli a bar to raise the car so that Clavin could get the riders apart. While Clavin was thus upon one of the cars attempting to separate them, and Sheridan was underneath one of the cars, an engine bumped up against the car attached to the - one that the men were at work upon, and the result was that Sheridan’s hand was injured so that it had to be amputated, and it is to recover for this injury that this action is brought. No flag was placed upon the car, nor was any notice given, either by Clavin or the plaintiff, of the fact that they were working at the car. Nor does it appear that the engineer in charge of the engine had any reason to ajiprehend that any of the men were in a situation of danger when he backed his engine up to attach it to the car to be removed. Neither the plaintiff nor Clavin seems to have been engaged in the work of repairing the car when the accident happened. At that' time they were endeavoring' to separate the two cars so that one could be removed, leaving the caito be repaired upon this track in such a position as would enable the men properly to repair it. While the plaintiff had been but twelve days in the employ of the defendant, he had been working for two -or three years in the employ of other railroad companies, a, part of the time as conductor, and a part of the time in repairing cars. He had been engaged in' the Tatter capacity by the Union Railway Company for one and one-half years. The situation in which the plaintiff had thus voluntarily placed himself was one, the danger of which was apparent to any one in the ordinary possession, of his faculties. It did not require an expert trainman or an experienced railroad man to appreciate the fact that it was a dangerous position to get under a car standing on a side track, and that a man. in that position, if the car should by any means be moved, would be injured. The plaintiff was not directly ordered by any of the responsible officers of the railroad company to place himself under the car. He did it voluntarily, with the danger apparent of a serious accident happening in case the. car under which he had placed himself was moved by any other car or engine coming up against it. 'When the plaintiff went under this car, according to the evidence, ‘Claviii .was already upon the car. If it was the duty of any of the ■employees of the defendant to give any signal to show that any one was under the car or in a position in which he could be injured by the car moving, it was the duty of the plaintiff to give such signal, .and if it was the negligence of any one that caused the accident, it was the negligence of the plaintiff in failing to give such signal. 'The plaintiff certainly was not required to go under this car, either by the work which he had to do or by any orders which he had received, until he had given the necessary signal to make his position reasonably safe, and it is difficult to see how a man who ■ thus ■voluntarily places himself in a position of danger, without the use ■of any safeguard to prevent an accident, the danger of which was .apparent, could be said to have established that he was free from ■contributory negligence.

To protect its employees in the discharge of their duties, the defendant had established a book of rules which were in force at the time of this accident, and this book, being the one referred to in the “ employee’s agreement,” signed by the plaintiff, contained the following rules: “ Rule 29. Blue is a signal to be used by Car Inspectors.” “ Rule 38. A blue flag by day and a blue light by night, placed on the end of a car denotes that car inspectors are at work under or above the car or train. '. The car or train thus protected must not be coupled to or moved until the blue signal is removed by the car inspector.- When a car or train standing on a siding is protected by a blue signal, other cars must not be placed in front of it, .so that the blue signal will be obscured, without first notifying the •car inspector that he may pirotect himself.” “Rule 204. Every employee is required- to exercise a reasonable care to avoid injury to himself or to others, and to see for himself before using them that the machinery, tools and materials provided for him, or subject to his management or use, are in proper condition for the intended employment.” “ Rule 206. The company desires its employees not to incur risks from which they can- protect themselves by personal care and by the exercise of their own judgment, and it en joins them to take, in all cases, the time necessary to safely do their duty, whether acting under the direction of their superiors' or not. The subjection of themselves or others to unnecessary risk will be cause for dismissal from the service.” These rules clearly prescribe a course of conduct for the car inspectors or their helpers, by which notice can be given to all other employees of the company that a person is underneath a car in a position of danger. The plaintiff, as well as the. other employees of the company, was enjoined to make use of these appliances and methods by which the risk attending the- position in which he was obliged to place himself would be avoided; and the company •enjoined the plaintiff to take the time necessary to do' his work safely, whether acting under the direction of his employers or not. It was in consequence of the neglect to comply with these rules that the injury to the plaintiff occurred ; and where it is made,the duty of the plaintiff to cause the proper signal to be given before placing himself under the car in a position of danger, and he neglects to give such a signal and receives an injury, the inference necessarily follows that the plaintiff’s negligence was the primary cause •of the accident.

The plaintiff testified on the trial that he did not know whether there was anything upon these cars to give signals; that he did not know anything about any signals on that switch track; that nobody told him of any rule of signals as to that track before the accident, and that he had never seen these blue signals used. Other witnesses who were called by the plaintiff testified that the men when working upon this “wheel spur track” had not been in the habit of complying wfitli this rule of the.company by placing a blue flag or blue light upon the cars upon this track when they were engaged in repairing them. Clavin testified that he had never'known of a blue flag or blue light being placed upon a car upon this particular track; that he had seen blue flags and blue lights used upon the main track, but had never known them to be used upon this switch track. He, however, said that he knew of the rule which required a blue flag or light to be used upon a car when it was undergoing repair; that he had been told by Mr. Faber, the chief of the department in which he worked, that, he was required to use a blue flag by day and a blue light by night on these cars and that he understood perfectly that there was a rule of the company which required the use of a blue flag by day and a blue light by night when repairs were being made; and. the other employees of the company who were called as witnesses also testified that they knew of the general rule, and that the rule was generally complied with, except upon this particular track. The witnesses for the defendant testified that the rule was complied with generally upon this track, The rule, however, existed, was general in its form, and in its requirements was binding upon all employees of the company.- To that rule the plaintiff subscribed and by it in his-contract with the defendant he agreed to be bound. He could read and write the English language, and upon entering the employment of the defendant,.voluntarily assumed the obligation to-abide by and enforce these-rules of the company as printed in their rule book-He did not testify that he never saw or read that book, or was not. familiar with its contents; nor is there any excuse offered.for his-failure to inform himself as to the rules and regulations which he had voluntarily made, binding upon himself. Having signed- this, agreement, it seems'to me that he was bound by the rules as promulgated by the company; that he subjected himself to the obligation to observe and enforce those rules, and that for an injury sustained by him in consequence of his violation of the rules the-company is not responsible. (Violette v. Rice, 53 N. E. Rep. 144.)

This is not a case where the liability of a corporation to one of its-employees is sought to be avoided because the injury was caused by the failure of a fellow-employee to obey a rule of the company,, formulated for the protection of its employees, but which had been neglected or violated by the employees with the knowledge or acquiescence of the corporation. In this case the rules of the company-required the plaintiff as much as Olavin, or any other of its. employees,.-to provide this blue flag or signal- before the plaintiff exposed himself in a position underneath the cars. Assuming that-prior to the time of this accident the defendant had been negligent.. in not enforcing.this rule as to this particular track, when the plaintiff signed this agreement he voluntarily agreed to comply with, and enforce the rules printed in the rule book of the company and to be-bound by them. The fact that the company had prescribed rules, for his conduct was expressly brought to his attention, and it was. his duty to familiarize himself with and to obey them. The rules, having been thus brought to his attention, he could not evade his. obligation to the company to comply with and enforce them, and to-be bound by them, by neglecting to acquaint himself with them and. throw upon the company an obligation for injuries sustained by him. in consequence of his violation of them. The failure of the other-employees of the company to. comply with these rules could not. relieve him from the obligation assumed by him to comply with and enforce them; and if he failed in this duty, voluntarily assumed by him when he entered into the employ of the company, and in consequence of such failure he was injured, it was his negligence and not the negligence of the defendant.

An examination of the cases relied on by the plaintiff will show, I think, that none of them are applicable to a case where it was the duty of an employee who was injured to do the act, the failure to do which caused the injury. Thus, in Coppins v. N. Y. C. & H. R. R. R. Co. (122 N. Y. 560), the accident was due to the negligence of a switchman, who, instead of attending to his switch, left his post for the purpose of taking a meal, and it was in consequence of his absence from his post of duty that the accident happened which caused an injury to the plaintiff. So in Wall v. D., L. & W. R. R. Co. (54 Hun, 454), where the action was brought to recover damages for the killing of the plaintiff’s intestate through the negligence of the defendant in retaining in its employ and in failing to discharge a servant who caused-the accident and who was habitually negligent in the performance of his duties. The liability in that case was placed upon the failure of the corporation to dismiss such employee after it had knowledge of his habitual negligence. In. Whittaker v. D. & H. C. Co. (126 N. Y. 544) a fireman was killed by a collision between the engine upon which he was employed and an engine left standing on the main track of the defendant road in violation of the rules of the company by its engineer. In Cameron v. N. Y. C. & H. R. R. R. Co. (145 N. Y. 400) the accident, which caused the death of the plaintiff’s intestate occurred through the negligence of Norton, a f ello w-rbrakeman, who had left a switch open and unguarded, and had thus violated a rule of the company requiring that “ whoever opens a switch shall remain at it until it is closed, or until he is relieved by some competent employee.” Norton had testified at the trial that for about four months prior" to the accident he had been accustomed td habitually A-iolate the defendant’s rules by leaving the switch open and unguarded; but it was held that, under such circumstances, it was not negligence on the part of the defendant to fail to detect Norton’s delinquencies, the court saying: “The negligent acts of ..Norton took place while he was working-on the same train and in a like capacity, with the deceased. It is more reasonable to suppose, that they were done in his presence, dr under his observation, than to imply knowledge on - the part of the defendant, and if it can be said that the deceased knew of these omissions of duty on the part of his fellow-brakeman and failed to report them, he might be regarded as voluntarily assuming tire risks and dangers incident to his association in a common work with a careless or incompetent co-servant.” In the case of La Croy v. The New York, Lake Erie & Western Railroad Company (132 N. Y. 570) the accident was caused by the failure of a brakeman to inspect the brakes upon the cars before taking the train down a steep grade. The plaintiff knew that the defendant had provided a book of rules requiring the brakeman to test the handbrakes before starting and to see that they were in a proper condition and worked easily. Before starting this train, the brakemen, of whom-the plaintiff was. one, did not test the handbrakes. The plaintiff testified -that he had not been .furnished with a book of rules; that he was not requested or required to read it, and that he did not in fact read it. The-court say: “But the question we are considering is not whether the defendant properly promulgated the rules as to the plaintiff, but whether they in fact came to his knowledge, and we think the evidence permits of no other inference than that they did. As the failure to obey the rules occasioned the accident, ’the plaintiff whose neglect was in part at least responsible, for it cannot require the defendant to compensate him for his injuries.” (P. 575.) It seems to me that this applies to the case now under consideration. Here the attention of the plaintiff had been specifically called to the fact that the company had established a book of rules and the plaintiff had expressly agi-eed to be bound by them, and certainly the fact that, the plaintiff failed to make himself acquainted with, the rules by neglecting to read them does not excuse his failure to observe them, nor does the failure of his co-employees to enforce them justify him in violating his "agreement with the company and himself neglecting to comply with them.

As was said by the court in the case of Cameron v. N. Y. C. & H. R. R. R. Co. (supra): “ If it can be said that the deceased knew of these omissions of duty on the part of his fellow-brakeman, and failed to report them, he might be regarded as voluntarily assuming the risks and dangers incident to his association in a common work with a careless or incompetent có-servant.” The case of Bruen v. Uhlmann (30 App. Div. 454) is also in point. In that case the plaintiff’s intestate was engaged as a track repairer by the defendant while at work upon the tracks of the Brooklyn Elevated railroad. - The deceased was struck by an engine of the defendant and killed. The evidence .showed that the rules of the company required that the workman engaged in repairing the track should place a green flag at a reasonable distance from the point at which the work was being performed. The plaintiff’s evidence showed that the deceased had on the day of the accident gone to work on this portion of the road without such ■ signal. The court, in sustaining a dismissal of the complaint, say: “ The evidence of the plaintiff not only failed to show absence. of contributory negligence, but it affirmatively established a degree of negligence on the part of the deceased which must defeat recovery. It is a well-established rule that the degree of care must be commensurate witb the danger, and if the deceased, familiar as he was with the dangerous situation in which he was placed, chose to neglect the precautions prescribed by the rules of the defendant, which, if they had been observed, were entirely adequate to protect him, there is no rule of law which will permit the defendant to be charged with damages because of his death. - * * It is absurd to contend that the defendant .is any way liable where the accident is due to the neglect of the employee himself .of those rules and regulations adopted for his- own safety, and of that degree of prudence which the obvious danger of the employment demands. * * * Having neglected to display these flags, he assumed the hazards incident to the employment in the presence of such neglect, and the defendant cannot be charged with, damages under such circumstances.” In the case of Moeller v. D., L. & W. R. R. Co. (13 App. Div. 469) a rule had been adopted quite similar to the one adopted by. the defendant in this case, which required a fed flag by day or a red light by night to be placed upon a car when repair men are at work underneath or about the car or train. In that case the plaintiff’s intestate aud one Young went to repair the brake on a defective car, and did not put up the. red flag on that occasion, because, as Young testified, “ we thought it was such a short job there wouldn’t be any need of it.” The court says : “At the time of the accident Young and the intestate were engaged in a joint act in repairing this brake, and in case the intestate knew of the rule he was negligent ; but, assuming that he did not know of it, Young did,.and ■his negligent disobedience of rule 75 was the cause of the accident. Thus it appears that the accident was caused by the joint negligence of the intestate and of Young, or was caused by the negligence of Young, who was the intestate’s fellow-servant, which defeats the plaintiff’s right to recover.” In this case as the plaintiff had, by his agreement with the company, expressly obligated himself to be bound by the rules of the company, by which rules it was his duty to display this flag upon the car before placing himself in a position of danger under it, aud as the. accident was the, result of his negligence in thus disobeying the rule of the company which he was bound _to enforce, the defendant is not liable for the injury caused by this accident.

It follows that the judgment must be reversed and a new trial ordered, with costs to the. appellant to abide the event.

'Van Brunt, P. J., and McLaughlin, J., concurred; Patterson and O’Brien, JJ.,. dissented.