(92 App. App. 71.)

#### PELIN v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Fourth Department

March 1, 1905.)

1. Railroads—Statutes—Hours of Work—Violation of Statute.

Laws 1897, p. 464, c. 415, § 7, provides that no corporation operating a railroad shall permit or require an engineer, fireman, etc., who has worked for 24 hours, to go .again on duty or perform any kind of work until he has had at least 8 hours’ rest. *Held,*that a breach of this statute gives a cause of action to any one injured by reason of its violation.

2. Same—Injuries—Action—Evidence.

In an action against a railroad corporation for injuries, *held*that there was sufficient evidence to warrant the jury in finding that the injuries were due to exhaustion of certain servants of the corporation, owing to their having been on duty over 24 consecutive hours, in violation of the statute.

3. Same—Violation of Statute—Intention of Employer.

Laws 1897, p. 464, c. 415, § 7, provides that no corporation operating a railroad shall permit or require an engineer, fireman, etc., who has worked for 24 hours, to go again on duty or perform any kind of work until he has had at least 8 hours’ rest. *Held*that, though those directing the movements of a crew of a train might have reasonably anticipated that the run on which the crew was engaged would not last 24 consecutive hours, the conditions of the business of the road having been such that the run could not be completed in less than such time, and an injury having resulted from the exhaustion of the crew owing to the hours of work, the corporation was liable. '

McLennan, P. X, and Stover, X, dissenting.

Appeal from Trial Term, Oswego County.

Action by Robert A. Pelin against the New York Central & Hudson River Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

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

D. P. Morehouse, for appellant.

Henry Purcell, for respondent.

SPRING, J.

The plaintiff’s intestate, a fireman on an engine of the defendant, was killed at a collision at Hannibal, in this state. The men composing the freight crew were called at Oswego by an agent of the defendant, before 3 o’clock in the morning of the 4th of April, to take their train, which was expected to leave at 4:30 that morning, although in fact it did not get away until' some time later; The trip was a short one—only to Wallington, a distance of 35. miles, and. return. By reason of an accumulation of freight and *469other obstacles the train was much retarded, and on its return trip arrived at Hannibal station about 2 o’clock the following morning. After unloading some freight at that place, the train was run on to a siding to await the passage" of the Wabash Flyer, which was a west-bound passenger train due to pass Hannibal about 4:20, but on that morning arrived about 30 minutes late. The engineer of the Flyer testified that there were signals or markers on his engine denoting that he was followed by a second section, and he further testified that as he passed the freight train he gave the blasts which also were intended to inform the crew of that train that a second section was behind. After the Flyer passed, the freight train was run on the main track, and collided with the second section mentioned, and which consisted only of a light engine with tender; and Pelin, the plaintiff’s intestate, who was the fireman on that engine, received injuries from which he shortly died. The fireman on the freight train testified that he was asleep when the Flyer came along, and was awakened by it, but did not see the markers or hear the signal blasts. He testified that when he awoke the engineer was sitting in his place with his head on his arm, but the witness did not know that he was asleep. The engineer testified that he was awake, but did not hear the signal blasts, or observe the signal markers on the front of the engine of the Flyer. One Murray accompanied the freight train from Oswego to Wallington, and then joined the crew on its return trip as a fireman, and he testified that he was asleep in the caboose, but was awakened by the whistling of the approaching Flyer before it reached the station. By his subsequent testimony the witness leaves it somewhat uncertain whether he was asleep or awake at the time the train approached.

Section 7, c. 415, p.- 464, Laws of 1897, so far as pertinent, reads as follows:

> “No person or corporation operating a line of railroad of thirty miles in length or over, in whole or in part within this state, shall permit or require a conductor, engineer, fireman or trainman, who has worked in any capacity for twenty-four consecutive hours, to go again on duty or perform any kind of work, until he has had at least eight hours’ rest.”

The crew of this freight train had been in service continuously from 3 o’clock in the morning of April 4th until the time of the accident, which was about 5 o’clock in the morning of April 5th. They had therefore worked for more than “twenty-four consecutive hours,” and were starting to complete their return trip to Oswego when the collision occurred. They were therefore performing work after the lapse of 24 hours’ continuous employment for the defendant, and that successive uninterrupted service was precisely what the statute quoted was designed to prevent. The statute is for the protection of employés liable to be injured by the carelessness or oversight of co-employés caused by exhaustion induced by long-continued application to work. The intention of the employer or its agents is of no importance in the construction of this statute. In this instance ■ they may have reasonably anticipated that the train would reach Oswego on its return trip with*470in 24 hours of its departure from that city, but the liability, if any, arises from the -existence of the overtime employment forbidden by the statute, and is mitigated in no wise by the motives or reasons which impelled the infraction of the law. A railroad company with a crew out on a train for more than 24 hours may elect to have the trip completed by the same crew. If so, it runs the risk of liability for any injuries sustained by any of its co-emplóyés, and which is the proximate result of exhaustion or inattention caused by such working overtime. The defendant’s agents at all times keep in touch with the movements of its trains, and can readily regulate and control them. They therefore permitted this crew to perform work in continuing its trip to Oswego although the men had already been more than 24 consecutive hours in its employment. The jury had a right to say that the fact that the fireman was asleep was due to overexhaustion by reason of his protracted employment, and that the collision might not have occurred had he been in his normal wakeful condition. The engineer may not have been asleep when the train approached. He did not hear the signals of warning or see the signal markers, the significance of which he well understood. His omission to see or hear these signals the jury may have found was due to his exhaustion super-induced by his application to work for more than 24 hours without cessation. It is not necessary for the plaintiff to prove that the engineer was asleep. If, by reason of his dazed mental condition, caused by his protracted employment beyond the limits of the time fixed by the statute, he was unable to apprehend clearly his duties, and the collision thereby resulted, then the case is within the compass of the statute.

The jury, may also have found the causal connection between the violation of the statute and the collision. The bare fact of the performance of the work prohibited, with the injury resulting, is proof of negligence. In Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 811, in construing a section of the labor law which had been infringed, this language occurs at page 535 of 173 N. Y., page 574 of 66 N. E. [61 L. R. A. 811] :

> “Our attention, however, has been called to no statute prohibiting the doing of an act which is dangerous to the life or health of others in which it has been held that the jury may not find negligence and a liability for damages resulting from the doing of the prohibited act.”

A breach of this statute gives a cause of action to one injured by reason of its violation. Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536: Stewart v. Ferguson, 164 N. Y. 553, 58 N. E. 662. In the interpretation of a statute of this, kind it is essential to keep in mind the purpose of its enactment. An employé is "debarred from recovering for injuries sustained through the negligence of a fellow workman. With that protection to the employer the Legislature deemed it just, therefore, to the workman, to safeguard the employment by requiring that the efficiency of co-employés be kept at a fairly high standard.' One of the means in securing that object was to put a restriction upon the consecutive hours a conductor, engineer, fireman, or trainman was to be on duty. The *471danger of the employment, and the wisdom of reducing peril to a minimum as far as might be accomplished by statutory safeguards, also induced the legislation, and it should be given a reasonably liberal construction to make effective the praiseworthy purpose sought to be obtained by its observance.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

WILLIAMS and HISCOCK, JJ„ concur.

McLENNAN, P. J.

(dissenting). On the 5th day of April, 1901, plaintiff’s intestate was, and for some time previous had been, employed by the defendant as a locomotive fireman. At about 4 o’clock in the morning of that day a light engine upon which he was fireman started from the city of Oswego going west on defendant’s railroad, running as the second section of train No. 110, or the “Wabash Flyer,” so called. Such engine or second section following the Flyer was required by the rules of the defendant to keep at least five minutes behind it. Upon the front of the engine drawing the Flyer or train No. 110 there were two green lights, one on each side, which, by the rules of the company, indicated that it was being followed by a second section. At the time in question a freight train headed east was standing on a siding at the Hannibal station. The crew of such freight train, consisting of the engineer, fireman, conductor, and two trainmen, did not observe the green lights in front of the engine of the Flyer, which indicated, as we have seen, that a second section was following; and immediately after the Flyer passed the station at about 4:45 a. m. the freight train was run onto the main track, and was proceeding east on its way to Oswego. It had not gone on the main track to exceed 20 or 30 rods, when the light engine upon which plaintiff’s intestate was fireman came around a curve and came into collision with the engine of the freight train, and he was injured in such manner as to cause his death a few days later. The evidence tends to show that the crew of the freight train failed to observe the green lights on the engine of the Flyer, and thus to note that a second section was following, because such crew, or at least the fireman, whose especial duty it was to look out for and observe the same, was asleep, and that the accident resulted because of his failure and of his associates to observe such lights, and because the crew of the freight train did not know that a second section of train No. 110 was following the first section, and therefore went onto the main track directly in front of the rapidly approaching second section, and so notwithstanding the evidence tends to show that the whistle upon the engine of the Flyer was sounded in such manner as to indicate that it was approaching and was to pass, the Hannibal station. There is no suggestion that the rules of the defendant governing the operation of the trains in question were defective, that the employes upon both trains were not entirely familiar with them, or that they were not entirely adequate to protect such employés against an accident like the one in question if they had *472heeded and obeyed them. Neither is there any suggestion in the evidence that any of the employes were not competent and experienced railroad men. The sole ground of negligence on the part of the defendant urged by the learned counsel for the appellant is that the defendant had violated section 7 of chapter 415, p. 464, of the Laws of 1897, in that it had required and permitted the conductor, engineer, and fireman in charge of the freight train to work for more than 24 consecutive hours; that, as a result of such continued work, those men became exhausted, incapable of properly discharging their respective duties, and for that reason failed to observe that a second section was following the first section of the Flyer, or train No. 110, and that the accident resulted because of such exhaustion and incapacity. Plaintiff’s counsel in his points does not argue or claim that the charge of actionable negligence against the defendant can be sustained upon any other theory. It appears that the crew of the freight train were called for duty in the city of Oswego, where they resided, about or shortly before 3 o’clock in the morning of the 4th day of April, to prepare to take the freight train in question, composed of an engine, tender, and 14 cars, to Wallington, a station on defendant’s road, 35 miles westerly from the city of Oswego. The freight train was not got ready until 7:20 a. m., when it started with its regular crew. The only work to be done in going from Oswego to Wallington was to cut out and leave at Hannibal one car. The train reached Wallington about noon, and while there the crew got an order to do some switching, which they did. After such switching was done, they waited for orders, and finally left for Oswego at 6 :15 p. m. upon receiving orders so to do, then having a train composed of an engine, tender, 20 cars, and caboose. At Wallington two additional brakemen were taken on, so that on the return trip the crew consisted of the engineer, fireman, conductor, and four trainmen. Stops were made at the different stations between Wallington and Hannibal and switching done. The train arrived at Hannibal about 2 a. m. Freight was unloaded there, and several cars were switched. After that work was done, the freight train went onto the sid-. ing to wait for the Flyer to pass; the conductor and trainmen went into the caboose; the engineer and,fireman remained on the engine; and, as we have seen, the evidence tends to show that the fireman, and perhaps others of the crew, went to sleep. At least when the Flyer passed none of the crew observed the green lights on the engine, which indicated that a second section was following, and so moved the freight train out onto the main track, and started for Oswego, when, after proceeding a few rods, the collision occurred.

The run from Oswego to Wallington, a distance of 35 miles, as a rule did not take to exceed three hours. The round trip, was usually made in much less time than upon the day in question. Upon that day additional time was consumed because of an accumulation of freight at Wallington and other stations, resulting from a severe snowstorm, which had occurred some time previous. The crew.of the freight train, before leaving- Qswego on the morn*473ing of April 4th, had. had ample time and opportunity for rest; so far as appears, the full time—eight hours—mentioned in the statute. None of them complained of having been overworked,, or that they were exhausted, and no complaint of that kind was made by any member of the crew while on the trip and before the accident. The defendant had plenty other men in its _ employ_ to take the place of any member of the crew of the train in question if he had asked to be relieved, or if informed that he was exhausted, o: for any reason incapacitated from performing his work; _ and upon such information coming to the defendant it always furnished additional or other men to operate its trains.

The foregoing facts, which we think the evidence tended to prove, it is' urged establish actionable negligence on the part of the defendant w’hen considered in connection with the provisions of the statute to which attention has been called (section 7, c. 415, p. 464, Laws 1897). The act provides as follows:

> “No person or corporation operating a line of railroad of thirty miles in-length or over, in whole or in part within this state, shall permit or require a conductor, engineer, fireman, or trainman, who has worked in any capacity for twenty-four consecutive hours, to go again on duty or perform any kind: of work, until he has had at least eight hours’ rest.”

It is well settled that a violation of a statutory duty or requirement is evidence of negligence, and gives a cause of action in favor of any one entitled to its observance who is injured by its breach. Larino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 811; Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536; Huda v. Glucose Co., 154 N. Y. 474, 48 N. E. 897, 40 L. R. A. 411. We think, if the statute in question is given a fair and reasonable interpretation, it cannot be said upon the evidence in this case that the defendant was guilty of a violation of its provisions. Its purpose was to prevent a railroad company from sending out a train with a crew of men who had not had at least 8 hours of rest after having worked for 24 consecutive hours. We think the-Legislature did not intend to provide that, if a railroad company sends out a train manned with a proper crew to make a trip which is usually made in 12 hours, but which, by reason of unusual or unforeseen conditions, occupies more than 24 hours, it should be under the necessity of stopping the train at any point where it might be at the expiration of such 24 hours, and supplying it with another crew, in order to relieve itself from the charge of violating the statute. In the case at bar, was the duty imposed upon the defendant to hold' the freight train in question at Hannibal until it could send another crew to bring it to Oswego, a few miles distant? It seems to me that such interpretation would be unreasonable in the extreme. The defendant was not liable simply because it permitted or directed the crew of the freight train to finish the trip and bring their train home. If, after such trip was finished, the company had' required or permitted any one of such crew to perform any kind of work, it would undoubtedly have been a violation of the statute. The crew of the freight train were engaged, we will assume, for more than 24 consecutive hours, attempting to make a round trip *474of 70 miles. They were occupied for such length of time because of unusual conditions, which the defendant could not reasonably anticipate; and we think it was not chargeable with a violation of the statute, and therefore guilty of negligence, because it permitted such' crew to attempt to complete the trip and bring the train to its destination, even after the lapse of such period of 24 hours.

It follows, I- think, that the nonsuit was right, and that the judgment appealed from should be affirmed, with costs.

STOVER, J., concurs.