#### Elizabeth A. Hickey, as Sole Administratrix, etc., of Charles D. Hickey, Deceased, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

Fourth Department,

July 7, 1914.

Railroad — negligence — master and servant — death of fireman — fellow-servant rule — former verdicts—weight on appeal.

Where, in an action against a railroad to recover for the death of a fireman who was killed prior to the enactment of the Barnes Act in 1906, it appears that the accident was caused by lack of care and attention, or an error of judgment, of an engineer on another train, who was a fellow-servant of the deceased, a judgment in plaintiff’s favor will be reversed.

*It*seems, that had it been shown on the trial that the accident was caused by the failure of the defendant to have a sufficient number of the freight cars in the train equipped with air brakes, so that the engineer could control it without the aid of the hand brakes, the recovery would have been sustained.

The fact- that the plaintiff has had four verdicts at the Trial Term sustained by the trial judge is not entitled to consideration on appeal where the court is of opinion that the evidence is insufficient, as a matter of law, to establish negligence. It is only where a question arises as to the weight of evidence that such fact should influence the appellate court.

Appeal by the defendant, The Hew York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 16th day of January, 1914, upon the verdict of a jury for $6,500, as modified on resettlement by an order entered in said clerk’s office on the 29th day of January, 1914. Also an appeal by the defendant from the order entered *271in said clerk’s office on the 29th day of January, 1914, denying its motion for a new trial made upon the minutes.

*Halsey Sayles*and *John B. Stanchfield,*for the appellant.

*James O. Sehring,*for the respondent.

Kruse, P. J.:

The plaintiff’s intestate was a fireman in the defendant’s employ. He was killed on October 21, 1904, in a head-on collision at Geneva, in this State, through no fault of his, and the question is whether the defendant was at fault.

His train was north bound. It collided with a train south hound. Just north of the point of collision the railroad is dom ble tracked. The south-bound train should have stopped north of where the double tracks converge into a single track and let the north-bound train pass. But it went by that point onto the single track and the collision occurred.

The north-bound train was drawn by two engines. The engineer on one of the engines and the plaintiff’s intestate, a fireman on the other, were killed.

It is contended on behalf of the plaintiff that the engineer of the south-bound train was unable to control its speed and to stop his train in time to prevent the collision, because the train did not have in it a sufficient number of cars equipped with air brakes.

The statute makes it unlawful for a railroad company to haul or permit to be hauled or used on its line or lines within this State any freight train that has not a sufficient number of cars in it so equipped with continuous power or air brakes that the engineer on the locomotive drawing the train can control its speed without requiring brakemen to use the common hand brake for that purpose. (Laws of 1893, chap. 543, § 3, as amd. by Laws of 1900, chap. 549; now incorporated in Eailroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 79.)

If this train did not have in it a sufficient number of cars equipped as the statute requires, and the collision resulted therefrom, the defendant is liable. But the defendant contends that the plaintiff has failed to show that. It insists that the tram had in it a sufficient number of air-brake equipped cars *272to control the train, and that the collision occurred through an error of judgment or want of care on the part of the engineer on the south-bound train in not putting on his air brakes properly and timely.

In the action brought by the personal representative of the deceased engineer this same ground of liability, among others, was urged. The trial court held against the plaintiff in that case and nonsuited her. The judgment entered upon the nonsuit was affirmed by this court and by the Court of Appeals. *(Ruleff*v. *N. Y. C. & H. R. R. R. Co.,*117 App. Div. 917; 190 N. Y. 556.) The personal representative of the deceased fireman, the plaintiff in this action, was more fortunate at the Trial Terms. The case has been tried four times, and upon each trial the plaintiff has had a verdict. The same ground of' liability which is now urged was urged upon each of the appeals before us. The verdict upon the first trial was set aside by the trial judge as inadequate. The judgment entered upon the second trial was reversed by this court upon the authority of the decision in the *Buleff*case. *(Hickey*v. *N. Y. C. & H. R. R. R. Co.,*140 App. Div. 938.) The plaintiff had a verdict upon the third trial and the judgment was reversed upon the distinct ground, as stated in the decision, that the plaintiff did not prove that the injury which caused the death of her intestate was due to the negligence of the defendant. (155 App. Div. 877.) The case comes here for the third time. We have given it careful consideration, and think the evidence is substantially the same in effectiveness as before. It fails to show, as we think, that the collision was caused by a lack of sufficient air-brake equipped cars in the train.

Twelve of the twenty cars in the south-bound train had effective air-brake equipment. If the engineer had applied his brakes a little sooner than he did he could have stopped his train. It had almost stopped when the collision occurred. The track was wet and slippery, but the engineer knew that, or should have known it. We think the evidence fairly shows that the collision was caused either by a lack of care and attention, or error of judgment upon the part of the engineer of the south-bound train, and not by a lack of air-brake equipped cars. The defendant is not liable for the negligence of the engineer *273of the south-bound train. The Barnes Act (Laws of 1906, chap. 657, adding to Eailroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 42a; now Eailroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 64) was passed in 1906, which was after the happening of the accident.

Counsel for the plaintiff urges that we should allow this verdict to stand, because the plaintiff has had four verdicts at the Trial Terms, sustained by the trial judge in each instance. That suggestion would be entitled to great weight if the evh dence had been sufficient to submit the case to the jury, and the verdict set aside only as against the weight of the evidence. But where, as here, the reversal is upon the law, the number of verdicts which a plaintiff may have obtained is not potent. Even where the verdict is set aside as against the weight of the evidence, the controlling circumstance is not the number of times a jury may have decided a given question the same way, but rather whether the verdict is the result of conscientious and intelligent consideration or is influenced by passion, prejudice or other improper considerations. We have frequently refused to set aside a verdict even the second time, although the second verdict may be more favorable to the prevailing party than the first one, without a corresponding betterment of the evidence to sustain it, if the defeated party has had a fair trial and the trial is free from prejudicial error. Such a case is *Larsen*v. *Lackawanna Steel Co.*(138 App. Div. 375; 146 id. 238). One fair trial is all a litigant is ordinarily entitled to as a matter of right. If the question here were simply the weight of the evidence, we would let this judgment stand. We have no doubt this verdict represents the intelligent and conscientious judgment of the jurors and of the learned trial judge who sustained it. The record is entirely free from anything that would warrant us in setting aside the verdict, except as we think the evidence is insufficient as a matter of law to establish actionable negligence against the defendant.

A motion to dismiss the plaintiff’s complaint was made at the close of the evidence and denied. We think it should have been granted. So far as the record discloses all of the evidence *274offered by the plaintiff was received, and no error prejudicial to the plaintiff was committed.

As has been stated, the action has been tried four times. We think a new trial should not be awarded, but under the provisions of section 1317 of the Code of Civil Procedure (as amd. by Laws of 1912, chap. 380) the complaint should be dismissed.

The judgment should, therefore, be reversed and the complaint dismissed, with costs.

All concurred.

Judgment and order reversed and complaint dismissed/with costs, including the costs of this appeal.