#### WARN v. NEW YORK GENT. & H. R. R. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Master and Servant—Rules to Protect Servant—Failure to Enforce.

In an action against a railroad company for injuries to a car inspector, caused by moving the car without notice to him while he was under and inspecting it, there was evidence of a rule of the company requiring the use of blue flags and blue lamps on cars under which inspectors were at work, and that defendant did not require it to be followed at the station at which plaintiff was injured. *Helé,*that it was not error to submit to the jury -whether defendant was guilty of negligence in failing to promulgate and enforce such rule, in the event the jury found the rule applicable to the train where the injuries occurred, and whether defendant failed in its performance of the duty it owed to provide for its inspectors such appliances, and a system of transacting its business regulated by a rule that would render their work reasonably safe.

Appeal from circuit court, Onondaga county.

Action by Elias Warn against the New York Central & Hudson River Railroad Company to recover damages for personal injuries caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Affirmed.

• Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.

Hiscock, Doheny & Hiscock, for appellant.

Jenney & Marshall; for respondent.

HARDIN, P. J.

The respondent was in the employ of the defendant as an inspector of its cars at the Syracuse depot on the 29th of May, 1890, when he received injuries by the sudden movement of the cars, without any warning known to him of an intention to-move the cars under which he was engaged in inspecting. He seems to have been an inspector for several years, and his duties-were to inspect the cars that came into the depot. His habit was to commence at the rear end, sound the wheels if they were cast iron, and, if they were paper wheels and steel tires, he looked them over, and looked at the brakes and brake rods, brake beams, shoes, and at the air hose. This work was performed by going under the cars and in between the tracks. As the train approached the depot,' the depot master informed the plaintiff that an excursion train was coming from the east, going through to Buffalo, and, when the' train was pulling in, the depot master called out: “Hurry up, boys!' Look over the train, so we can get it out before No. 10 comes in.” The plaintiff, as well’ as his associates, commenced work at the rear end, and, when between the cars, he coupled the hose, and fixed the handles, and coupled the safety chains, as he went along, and while thus engaged, in the performance of his work, he rose up to back out, when he “got caught.” He received no notice or warning that the train was to be put in motion. The plaintiff offered in evidence a rule known as No. 36 from the printed rules of the defendant, which was in the following language:

> “The blue flag by day, and a blue light by night, placed on the end of a car, denote that ear inspectors are at work under or about the car or train.. *337The car or train thus protected must not be coupled to or moved until the blue signal is removed by the car inspectors. 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 protect himself.”

It appeared by the evidence that “the rules of the company are bound in pamphlet form, and divided under headings, and are classified ; and rule 36, introduced in evidence, with several others, is under the head of ‘Train Signals.’ ”

At the close of the plaintiff’s evidence, the defendant moved foe a nonsuit, upon several grounds, which was denied, and an exception taken. Evidence was given during the trial that there had been a practice of several years’ standing to omit the observance of the rule when inspecting trains at the Syracuse depot. Controversy was made upon the evidence as to whether the rule applied to passenger trains. We think the evidence warranted the court in submitting to the jury, “as a question of fact, whether the rule did apply to passenger trains as they arrived in the station in Syracuse or not, in view of all the circumstances.” After announcing the language we have just quoted, the judge observed:

> “Taking into account as one of those circumstances, the fact that no attempt was ever made, since that rule was devised, to enforce it. If you find, gentlemen, that that rule was made for the purpose of applying to railroad trains that came into the depot, and you also find that it was not promulgated, and that it was not enforced, then, gentlemen, those are important considerations for you to have in mind in deciding whether the defendant used reasonable care or not for the protection of its employés, in the dangerous position to which it had assigned them to duty.”

The judge properly instructed the jury that if they found the rule did not apply to defendant’s station and passenger trains at the station, and that it was not promulgated and not enforced, they might inquire whether the defendant “provided in place of that rule some other reasonable protection adequate to the situation.” And he followed that instruction by an observance that the law required reasonable diligence in the premises, and what is reasonable diligence is a question for the jury, under the circumstances of this case.

This case was before us on a former appeal, and our decision appears in 80 Hun, 71, 29 N. Y. Supp. 897, where we held, viz.:

> “The law imposes upon a railroad company the duty to its employés of diligence and care, not only in furnishing proper and reasonably safe appliances and machinery, and skillful and careful coemployés, but also of making and promulgating rules which, if faithfully observed, will give reasonable protection to the employés; and it is also required to exercise such a supervision over its servants and the prosecution of its business as to justify the belief that the business is being conducted in pursuance of such rules. A corporation, in making rules for the government of its employés, is bound to use ordinary care, and to anticipate and guard against sucli accidents and casualties as may be reasonably foreseen by its managers exercising such ordinary care. The rule that a servant takes the risk of the business is subject to the qualification that the master must exercise reasonable care to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from the negligence of coemployés; and the negligence of one servant does not excuse the master from liability to *338a coservant for an injury which would not have happened had the master performed his duty.”

We have made a careful inspection of the evidence produced on the trial now before us, and are of the opinion that the trial judge followed the rule of law laid down when we disposed of the former appeal in this case, and that he committed no error in submitting to the jury, as a matter of fact, to determine whether the defendant was guilty of negligence in failing to promulgate and enforce the law which it had adopted, requiring the use of blue flags and blue lamps upon the cars under which inspectors were at work, in the event the jury found the rule was applicable to the train where the injuries occurred, and whether the defendant had failed in its performance of the duty which it owed to provide for its inspectors such appliances, and a system of transacting its business, regulated by a rule that would render their work reasonably safe. Abel v. Canal Co., 103 N. Y. 581, 9 N. E. 325; s. c., on subsequent appeal, 128 N. Y. 662, 28 N. E. 663; Whittaker v. Canal Co., 126 N. Y. 544, 27 N. E. 1042.

2. We are of the opinion that the trial judge properly submitted the question as to the plaintiff’s contributory negligence to the jury. Bearing upon that question was the evidence of Swanton, to the effect that he had directed the men to get out from under the cars.; and in connection with that evidence was the testimony that the plaintiff did not hear the direction when it was given, as he was ■engaged in work which absorbed his attention, and that fact, together wifh his testimony as to what transpired at the time he received the injuries, presented considerations properly left to the jury to determine whether he was guilty of negligence which contributed to the injuries which he received.

The learned counsel for the appellant calls our attention to Potter v. Railroad Co., 136 N. Y. 77, 32 N. E. 603. We think that case is . distinguishable from the one in hand. In the course of the opinion delivered in that case, Andrews, J., said: “The evidence did not ■disclose any omission of duty by the defendant;” and he added: “Nor is it claimed that proper regulations had not been established ■defining the duties of employés,. and for the management for the business of the yard.” And in many other respects the case differs from the one before us.

We have looked at the exceptions taken to the charge as delivered, and to the refusals to charge as requested, and are of the opinion that they do not require us to interfere with the verdict. The trial- judge seems to have carefully regulated the course of the trial í>y the doctrine laid down by us upon the former appeal. Under such circumstances, we are of the opinion that it is our duty to ■adhere to the decision made when the case was considered when the nonsuit was brought in review.

Judgment affirmed, with costs. All concur.