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and 118 New York State Reporter switch to let the engine from track No. 3 onto track No. 4; and in doing so he set the home signal, 192 feet to the west of the tower, at danger (so as to show a red light), and set the distant signal, 2,192 feet west of the tower, at caution (showing a green light). All this being done, the engineer on the west-bound freight train started from track No. 3 across track No. 4 to take the car from the siding. While thus engaged, and when his engine was upon track No. 4, the eastbound freight train upon track No. 4, upon which plaintiff's intestate was engineer—he having failed to observe or heed the green light at the distant signal, or the red light at the home signal, dashed into the engine in front of it, without even slacking its speed, with the result above indicated.

The rules promulgated by the defendant, which the deceased had, and was familiar with, provided :

"A signal imperfectly displayed, or the absence of a signal where a signal is usually shown, must be regarded as a danger signal.

“In the absence of any signal trains must stop. "In all cases of doubt or uncertainty take the safe course and run no risk."

The evidence tends to show that at the time of the accident there was a dense fog in the locality, and such as to render it practically impossible for the deceased to see the signals, considering their character, location, and the power of the lights displayed. The evidence also tends to show that such fogs were frequent in that locality, and upon the Mohawk Division of the defendant's railroad.

It was proven that the Long Island Railroad Company and the Delaware & Hudson Canal Company had adopted and enforced rules which, in effect, required, when a train or engine was to cross from one track to another when a fog prevailed so as to obscure the signal lights, that, before so crossing, torpedoes should be placed upon the track, as an additional warning of danger to a train approaching such point of crossing. The only negligence of which it is claimed the defendant was guilty was its failure to adopt and enforce a similar rule. The conditions existing upon the two railroads referred to were not the same as those which existed upon defendant's road. Neither was a four-track road, and neither had adopted the same system of signals employed by the defendant. The evidence, however, tended to show that the use of torpedoes upon the defendant's road was entirely practicable, and that, if they had been used upon the occasion in question, the accident probably would not have happened. The question is thus presented whether or not the failure of the defendant to make and enforce a rule requiring torpedoes to be placed upon the track of an approaching train, as a warning that such track was to be crossed or obstructed by another engine or train, in addition to the warning given by the system of signals which the defendant has adopted, constituted actionable negligence on its part. It is well settled that the law imposes upon an employer the duty of making and enforcing such reasonable rules and regulations for the government of the men in his service as will prevent or guard against injury by one servant to another, in so far as that is reasonably practicable. Doing v. New York, Ontario & Western R. Co., 151 N. Y. 579, 45 N. E. 1028. The rules adopted by the defendant, and which,

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so far as appears, were universally enforced, if obeyed, furnished absolute protection to its employés operating its trains upon the tracks in question. Such rules were concededly properly promulgated, and they said to the deceased, in substance: "A green light at the distant signal, 2,192 feet from Oriskany Station, means caution. You must have your train under absolute control when you pass it. If it is imperfectly displayed or is absent, it means there is danger ahead. The red light at the home signal means stop, and the absence of such light as emphatically means stop.” So that, if we assume the fog was so dense as to prevent the deceased from seeing either of the signals, the rules, if obeyed, furnished complete protection. In that case he was required to have his train under control as he passed the first, and to stop when he reached the second; and in case he did not know where he was or where the signals were located, or if he was in doubt, the rules directed him to take the safe course and run no risk. Where a railroad has established and promulgated rules relating to the management of its trains and the government of its employés, and such rules have been uniformly enforced, and it appears that, had the rules been followed, no accident would have occurred, such rail. road is not guilty of negligence because of its failure to promulgate other or additional rules. Smith v. N. Y. C. & H. R. R. Co., 88 Hun, 468, 34 N. Y. Supp. 881, affirmed in 153 N. Y. 664, 48 N. E. 1107. As is said in the headnote in Niles v. N. Y. C. & H. R. R. Co., 14 App. Div. 58, 43 N. Y. Supp. 751:

That as it appeared that the existing rules of the company, if followed, would have been sufficient to have prevented the accident, the jury should not be allowed to speculate as to whetber the existence of other rules was desirable.”

It is concluded that the evidence failed to show that the defendant was guilty of negligence which caused the accident.

We think, also, that the evidence establishes, as matter of law, that plaintiff's intestate was guilty of contributory negligence. As we have seen, he was entirely familiar with that portion of defendant's road where the accident occurred. In the capacity of engineer, he had passed and repassed it almost daily for 25 years. He had stopped his train at Factory Village, only seven miles from Oriskany Station, where he knew there was a signal tower which operated the signals by which he was to learn whether or not he could pass such station. He also knew that it was his duty, in case such information was not conveyed to him by the signals, to regard its absence as a danger warning and a command to stop; but, without giving any heed to the signals which were shown against him, if he saw them, or, in case they could not be seen, to the rules which should then control his action, he went on, his train going at the maximum rate of speed; passed all the signals, and even passed the station itself, without even slacking the speed of his train. If he saw the signals, or any of them, and failed to heed their warning, he was guilty of negligence; if he could not see them because of the fog, but knew their location, he was guilty of negligence in passing them without having his train under control; and if he did not see them or know their location, or know where he was, he was guilty of negligence in proceeding at such high and 118 New York State Reporter rate of speed without taking any means to ascertain whether or not it was safe for him to do so. In any view of the evidence, we think it must be concluded that the conduct of the plaintiff's intestate was negligent, and such as to prevent a recovery. It follows that the judgment and order appealed from should be affirmed, with costs.

Judgment and order affirmed, with costs. All concur.

VAN DERHOFF V. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1 MASTER AND SERVANT-DETAIL OF WORK-DELEGATION TO FOREMAN-NEG

LIGENCE

Plaintiff was, with others, under the direction of a foreman, removing earth 'which had fallen on defendant's track, when some of the embankment from above fell, injuring him. The place was free from da ngers other than were incident to the work to be performed. The foreman was a man of experience, and had placed lookouts to inform the men of danger from the rock above. Held that the manner of removal of the embankment was a detail properly left to the judgment of the foreman,

and was not one which the defendant was bound to perform. 2. Sam E-FELLOW SERVANTS-DECLARATION.

The statement of the foreman to plaintiff, during the progress of the work, to never mind looking up, but to go on with his work, did not impose any liability on defendant, as it was the declaration of a fellow

servant with reference to a situation apparent to both. Appeal from Trial Term, Niagara County.

Action by William Van Derhoff against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and an order denying defendant's motion for a new trial, it appeals. Reversed.

See 81 N. Y. Supp. 1145.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Pooley, Depew & Spratt, for appellant.
King, Leggett & Brown, for respondent.

STOVER, J. Appeal from a judgment in favor of plaintiff after trial by jury in Niagara county, and from an order denying a motion for a new trial upon the minutes. Plaintiff was emploved by the defendant as a trackman, and, in the performance of his work, was under the direction of a foreman. Just prior to the accident, a portion of an embankment along the roadbed of the defendant had become loosened and fallen upon the tracks, and the gang with which plaintiff was connected was sent to remove the loose material. The embankment consisted of shale and rock. The gang in which the plaintiff was employed had been at work some two or three hours removing the portion of the embankment which had fallen upon the track, when some of the rock from the ledge or embankment above became dislodged in some way, falling upon the plaintiff, and inflict

1 2. See Master and Servant, vol. 31, Cent. Dig. $ 505.

ing the injuries complained of. At some time while the plaintiff was at work, he says he looked up in the direction of the bank, and the foreman said to him, “Never mind looking up.” At the time of the accident, there were two men upon the lookout at the edge of the bank; and, as soon as they saw the stone start, they gave a warning, and all of the men ran. Plaintiff ran, but did not get out of the way in time.

No doubt, the plaintiff was working in a dangerous place, but the danger was the inevitable result of the situation, to remedy which he was employed, and was in no particular the result of negligence. The place was reasonably safe; that is, it was free from dangers other than were incident to, and necessarily arose from, the character of the work to be performed. The bank was steep. The rock had become loosened so as to permit it to slide upon the track below, and, in removing it, it must have been apparent that more or less of the loose rock at the top would fall from time to time. In the performance of the work, the defendant had employed a competent foremana man of experience—and who seems in this instance to liave taken the precaution to station lookouts to inform the men of danger from any rock that might become loosened during the work. The manner of the removal of the embankment was a detail of the work, which should properly be left to the judgment of the foreman, and not one which the master himself was bound to perform. Di Vito v. Crage, 165 N. Y. 378, 59 N. E. 141; Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021. Nor does the statement of the foreman to the plaintiff in this case not to look up, but to go on with his work, in any manner change the rule, or impose liability upon the master. It must be construed, we think, to be a declaration of a fellow servant with reference to a situation which was apparent to both. We think the complaint should have been dismissed.

Judgment and order reversed, and new trial granted, with costs to appellant to abide the event, upon questions of law only. All concur.

HUFF V. AMERICAN FIRE ENGINE CO.

(Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1. MASTER AND SERVANT-INJURIES-REVOLVING SHAFT—UNGUARDED SETSCREW

-EVIDENCE.

In an action against a master for the death of a servant, alleged to hare been caused by the master's negligent failure to guard a setscrew on a shaft as required by the provisions of the labor law, in consequence of which decedent's clothing was caught by the setscrew, evidence considered, and held insufficient to show that deceased was caught by the set

screw.

2. SAVE-CONTRIBUTORY NEGLIGENCE.

In an action against the master for the death of a servant, alleged to have been caused by the master's negligent failure to properly guard a setscrew on the shaft, in consequence of which deceased's clothing was caught thereby, evidence held insufficient to support a finding that de

ceased was free from contributory negligence. Appeal from Trial Term, Seneca County.

and 118 New York State Reporter Action by Margaret E. Huff, as administratrix of James D. Huff, deceased, against the American Fire Engine Company. There was a judgment for plaintiff, and from an order denying a motion for a new trial defendant appeals. Reversed.

The action was commenced on the gth day of October, 1902, to recover the damages sustained by the death of James D. Huff, plaintiff's husband, alleged to have been caused through the negligence of the defendant, and without any contributory negligence on the part of the deceased.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Charles A. Hawley, for appellant.
Frederick L. Manning, for respondent.

McLENNAN, P. J. The material facts of this case are not in dispute. The defendant was engaged in manufacturing steam fire engines in the village of Seneca Falls, N. Y., and operating a foundry in connection therewith. So far as important to note, the foundry building in which the accident complained of happened was a two-story structure, the ground floor of which was used as a molding room. Directly above it was a scaffold room, so called, 18 feet 8 inches long, and 16 feet wide. The walls were made of brick, and the floor of iron. It was well lighted, and was reached from the molding room by means of a stairway at the south end. At the extreme north end, and midway between the sides, there was a cupola or furnace for melting iron. It was a circular brick structure, 4 feet in diameter, and extended from the ground floor up through the scaffold room and roof of the building. A door in the cupola, directly in front, opened into the scaffold room, the bottom of which was on a level with the floor. In this room iron, coal, and coke were deposited and made ready to be used in charging the cupola; it all being weighed or measured, and the coal and coke placed in separate piles along the west side of the room, and the iron on the east side. When the cupola was to be filled, a fire was started at the bottom, and the iron, coal, and coke were then shoveled or thrown into it through the door from the scaffold, in proper proportions. A shaft 2 inches in diameter extended along the west side of the scaffold room, about 8 inches from the wall and 41/2 feet from the floor, supported and held in place by posts or braces, called "hangers," resting on the floor. The shaft was made of two pieces joined together by putting a hub or collar on each of the ends to be united. On the end of each hub was a flange, which projected out from the main part of the hub about 1 inch. Next to the flange there was a setscrew, which extended through the hub, making it rigid upon the shaft. The head of the setscrew was seven-eighths of an inch square, and projected outward exactly the same distance as did the Aange. When the hubs were thus attached, the two ends of the shaft were connected by bolting the two flanges solidly together. By means of a belt

a extending from a revolving shaft in the molding room, up through the floor of the scaffold room, and onto a pulley upon the shaft in

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