#### Charles E. Whittaker, Adm’r, Resp’t, *v.*The Prest., etc., of the Delaware & Hudson Canal Co., App’lt.1

*(Court of Appeals,*

*Filed June 2, 1891.)*

1. Master and servant—Notice op incompetency op co-servant.

It is not necessary that the incompetency of a servant be brought to the personal knowledge of the master; but if it continues for such a length of time as that a careful and diligent supervision of its business ought to bring it to its knowledge it is chargeable with notice of its existence.

2. Same—Negligence—Railroad—Co-servant.

Plaintiff's intesta'e was injured through a collision between an incoming freight train upon which he was employed as fireman and an engine left standing upon the main track of defendant’s road, in violation of the rules of the company, by its engineer while he was waiting in the ofidce near by for orders. This engineer and others had been in the habit of doing this for at least a year. *Held,*that this had continued for so long that it ustified the jury in finding that it had come to the knowledge o"f the defendant and was pursued by their acquiesence, and as there was evidence that intestate was free from contributory negligence, it was error for the court to refuse to submit the case to the jury.

Appeal from order of the supreme court, general term, fourth department, reversing judgment, dismissing complaint and directing new trial.

*Edwin Young,*for app’lt; *Louis Marshall,*for resp’t.

1

 Affirming 34 N. Y. State Rep., 822.

Ruger, Ch. J.

The appeal in this case was taken by the defendant, upon the usual stipulation, from an order of the general term, reversing a judgment dismissing the complaint, and directing a new trial. The complaint was dismissed by the trial court upon the ground that the evidence failed to show negligence on the *524defendant’s part, and also that the plaintiff did not show that his intestate was free from, contributory negligence. Upon appeal to the general term, they held that there was evidence sufficient to support a verdict for the plaintiff on both grounds, and that the direction of a verdict by the trial court was, therefore, erroneous. We agree with the conclusion reached by the general term. There was evidence in the case, from which the jury could properly have found that the injuries received by plaintiff’s intestate were occasioned by the negligence of the defendant. The proof showed that the accident occurred in the night time in the defendant’s railroad yard at Quaker street, through a collision between an incoming freight train, upon which the plaintiff’s intestate was employed as fireman, and an engine left standing on the main track of defendant’s road, in violation of the rules of the company, by its engineer while he was waiting in the office near by for orders.

It is claimed by the defendant that the presence of the stationary engine on the track was due to the fault of its engineer, who placed it there in contravention of a rule of the company forbidding its employes from placing engines and cars on the main track, except under orders. It is conceded that this engineer had no orders to go upon the main track with his engine, and it is, therefore, claimed that the accident having occurred through the fault of a co-servant, the company is not liable.

There was evidence in the case to show that this engineer and others for a period of at least one year had been in the habit of disobeying this rule of the company, and violating its requirements by placing their engines upon the main track at Quaker street and leaving them there while awaiting orders. This practice had been so frequently indulged in and had continued for such a length of time, that the jury were justified in finding that it had come to the knowledge of the railroad company and was pursued by their acquiescence, or as the result of a want of vigilance in supervising the management of their road.

A railroad company does not discharge its whole duty to the public by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants; but it is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules. *Wabash R. R. Co.*v. McDaniels, 107 U. S., 454 ; *Chapham*v. *Erie R. Co.,*55 N. Y., 579 ; *Baulec v. N. Y. & H. R. R. Co.,*59 id., 356.

Neither is its duty in respect to the employment of servants satisfied by the hiring of capable and competent persons in the first instance; but it is also required that they should exercise such an oversight and supervision of such servants, that if they afterwards become habitually, notoriously incompetent, or unfit, from carelessnees or bad habits, to perform their duties, this incompetency, if long continued, should be discovered and guarded against. *Laning*v. N. *Y. C. R. R. Co.,*49 N. Y., 521. It is not necessary that this incompetency should be brought to the personal knowledge of the master; but if it continues for such a length of time as that a careful and diligent supervision of its *525business ought to bring it to its knowledge, it is chargeable with notice of its existence.

It was said in *Gilman*v. *Eastern R. R Cor.,*10 Allen, 283, approved in the *Laning*case, that “ this care he (the master) can and must exercise both in procuring and keeping and maintaining such servants, structures and engines; if he knows, or, in the exercise of due care, might have known that his servants are incompetent, or his structures or engines insufficient at the time of procuring them, or at any subsequent time, he fails in his duty. For the management of his machinery and the conduct of his servants, he is not responsible to their fellow servants; but he cannot avail himself of this exemption from responsibility when his own negligence in not having suitable instruments, whether persons or things, to do his work, causes injury to those in his employ.” The rule in reference to constructive notice is well expressed in the case of *Hills*v. *Chicago & Grand Trunk R. Co.,*55 Mich., 487, as follows: “A master who retains an incompetent servant in his employment, after knowledge comes to him of the unfitness of the servant for the service in which he is engaged, or of whose unfitness he might have known by the exercise of due diligence or ordinary care, is liable for injury to .another servant, cause’d by the negligent acts of the incompetent servant."

In views of these rules, it was clearly error to take this case from the jury, unless there was also evidence from which the jury were, as matter of law, authorized to find contributory negligence on the part of the plaintiff’s intestate. So far from this being the case, we are of .the opinion that the undisputed proof showed that he was free from negligence. The material evidence on this question was given by the engineer in charge of the freight train, and he testifies that he received orders at Cobleskül, the last station before reaching Quaker .Street, to run into the yard at that place in advance of his schedule time; that he was accordingly a few minutes .ahead of time with his train, and was running at the time he entered the yard at the rate of from seven to ten miles an hour; that the night was dark and foggy, and it was impossible to see a dark stationary object on the track in time to avoid a collision with it; that he gave the usual signal about half a mile from the yard, lay a sharp whistle, of the approach of his train and rang his bell continuously; that he kept a sharp lookout for objects on the track ahead of him as he ran into the yard, and saw nothing; that the stationary engine had no light upon it that could be seen, and he did not see it until he arrived within sixty or seventy feet of the engine, when it was discovered by the reflection of his own headlight upon it He further testified that the last he saw of Whittaker he was getting coal from the tank to throw into the furnace. This was immediately after he saw the engine, and there was then not sufficient time to enable either Whittaker or himself to escape from the train. It is quite difficult to see what measures either the engineer or Whittaker could have taken to avoid the collision. They were under orders to *526run into the yard in advance of time, and had a right to assume that the defendant had taken such precautions as would relieve them from any hazard of a collision in running into the Quaker Street yard. They were "both engaged in the discharge of their customary duties and exercised all of the precaution in entering the yard that was required "by the obligations of ordinary prudence and care, and are not justly chargeable with negligence in running into the yard as they did. The only suggestion of any want of care on their part is predicated upon the assumption that the-train was running at a prohibited rate of speed.

It is claimed that there is proof in the case that trains are prohibited from running through a yard at a greater rate of speed than four miles an hour. No such rule was introduced in evidence ; but there was a rule proved that “ all engines must approach and pass all stations cautiously, whether they are to stop or not” One of the railroad employes did, however, testify that he had previously sworn that a train could not run past a station at a greater rate of speed than four miles an hour. Assuming, however, that there was evidence of such a rule, it is not certain that the rate of speed of the incoming train was the cause of the accident It is perfectly obvious that whatever the rate of speed, whether four or seven miles an hour, a collision with the stationary engine on the same track was inevitable, and the danger to those exposed to its effect unavoidable.

It is, therefore, quite immaterial whether the fireman was chargeable with the engineer’s carelessness, or want of skill, or not, as it was quite certain that the jury could, upon the evidence, find that there was no such want of care and caution in running the freight train as contributed to tbe accident

We think, in view of all the facts in the case, that it was the duty of the trial court to have submitted the case, on both of its branches, to the jury, and that it erred in withdrawing it from them.

The order of the general term should” therefore, be affirmed and judgment absolute ordered for the plaintiff, with costs.

All concur, except Peckham, J., not voting.