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

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Master and Servant—Incompbtency op Fellow Servant.

Where a servant was injured by the negligence of a fellow servant, who was competent when employed, but who had since become habitually negligent, it is a question of fact whether such habitual negligence had been so frequent and long-continued as to charge the master with knowledge thereof.

Appeal from circuit court, Washington county.

Action by Agnes Cameron, as administratrix of Allan Cameron, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the alleged negligence of defendant, causing the death of plaintiff’s intestate, a brakeman in defendant’s employ. From a judgment entered on a verdict in favor of plaintiff for $1,924.86 damages and costs, and from an order denying a motion for a new trial made on the minutes of the judge, defendant appeals. Affirmed.

Argued before MAYHAM,, P. J., and PUTNAM and HERRICK, JJ.

F. L. Westbrook (Ashbel Green, of counsel), for appellant.

John M. Gardner, for respondent.

HERRICK, J.

The plaintiff’s intestate, Allan Cameron, was of about the age of 20 years, and had been in the employ of the defendant as a brakeman for about a year prior to his death by the accident in question. The train upon which he was employed started from Kingston, on defendant’s road, on the morning of the 7th of May, 1891. On arriving at Marlborough—a station about 20 miles south of Kingston—it passed onto a switch or freight track, and stopped in front of the freight depot. At this point on defendant’s road there are two main tracks,—one known as the "southbound track,” and the other the “north-bound track.” On the west of these two tracks is a side track for freight, and a side track to a gravel pit, and on the east of the main tracks, and between them and the Hudson river, there is another side track. At the time in question there was on the side track to the gravel pit a car to be taken out, and put on the other track, and a car was to be taken from the freight train on which young Cameron was employed, and left at Marlborough. On the side track east of the main tracks were a number of cars, one of which was to be taken and attached to this freight train, and taken away as part of it. While the freight train was at this depot, an express train known as “No. 11” passed by on the easterly or north-bound track, carrying signals indicating that it was followed by another train running on the same time schedule, and entitled to the same time-table rights as the train carrying the signals. Before No. 11 had passed, the conductor of the freight train had told the brakemen what was to be done as to leaving and taking on the cars already spoken of. After train No. 11 had passed, the conductor of the freight train gave directions not *899to cross until the second section which was following No. 11 had gone hy. At this point there is what is called a “cross-over switch,”* hy which cars may be switched from one track to the other. Before the second section of train No. 11 had gone by, Cameron and a brakeman named Norton went across the main tracks to the switch east of the main tracks, where Norton told Cameron which car was to be taken from it. They then started to go back. Norton opened the cross-over switch at the north-bound track, and left it open. He then went towards the westerly main track, that being towards the south-bound end of the switch, with the intention of opening that end of the switch, but before he got there, hearing the engine that was following train No. 11 coming up the track, he started to close the switch he had opened, but did not arrive there in time, and the engine passed over the open switch on the south-bound track, and ran into the cars standing thereon. Intestate, Cameron, who was engaged with those cars, was jammed by the collision, and was so injured that he subsequently died.

Buie 117 of the defendant’s rules and regulations provides that “whoever opens a switch shall remain at it until it is closed, or until he is relieved by some competent employe.” The brakeman Norton was familiar with these rules, and had a copy of the rules and regulations for the conduct of defendant’s employes in his possession. Rule *i*reads:

“Every employe of this company whose duties in any way are prescribed by these rules must always have a copy of them on hand, and must be conversant with every rulo. He must render all the assistance in his power in the carrying of them out, and must report any infringement of them to the head of his department.”

Norton had been in the employ of the defendant over a year and a half, and was promoted to brakeman, and had been employed as brakeman for some eight or nine months prior to the happening of this accident. He was a witness upon the trial, and testified that he had been in the habit of operating switches in the manner in which he operated the one in question on the day of the accident for eight or nine months,—that is, opening them, and then going away and leaving them open; that he did it almost daily. It is conceded that leaving the switch open was the cause of the accident. At the close of the plaintiff’s case, the trial court, in denying the motion for a nonsuit, announced that the only question to be determined was the incompetency of Norton; and that was the principal issue, and indeed the only issue, finally presented to the jury for their consideration in determining the liability of the defendant. It is conceded that Norton was at the time of his employment, and at the time of his- promotion to the position of brakeman, a com- . petent man, and the question is, assuming his story to be true, whether the violation of the rule habitually indulged in by him rendered him- an incompetent man, and whether the defendant had notice of his habitual disregard of the rule in question. Norton’s own testimony shows him to have been an incompetent servant. “A competent man is a reliable man,—one who may be relied upon to execute the rules of the master unless prevented by causes beyond his *900control. Hence incompetency exists not alone in physical or mental 'attributes, but in the disposition with which a servant performs his duties. If he habitually neglects those duties, he becomes unreliable, and, although he may be physically and mentally able to do well all that is required of him, his disposition towards his work, and towards the general safety of the work of his employer and to his fellow servants, makes him an incompetent man.” Coppins v. Railroad Co., 122 N. Y. 557-564, 25 N. E. 915. It is true that when Norton was hired, and when he was promoted to the position of brakeman, he was a competent man. But the duty of the defendant did not end there. Not only is it its duty to secure competent men, but it must see to it that they remain competent; and for that purpose it must maintain a vigñant watch and superintendence over its men, just as it does over its tracks, engines, and cars. Of course, having procured competent and reliable men, it is not answerable for the first lapse of duty by reason of the carelessness or negligence of the men so hired; but, when it becomes habitual or of frequent occurrence, then it is chargeable with any damages resulting therefrom, if it has notice of such conduct on the part of its employe,, or if it, by a reasonable supervision of those employed in its service, could have acquired notice or knowledge of such carelessness or neglect of duty. Upon the trial the defendant produced the division superintendent having charge of that division of the road where the accident happened, and other officers or employes of the defendant, superior in rank to either Norton or Cameron, who all testified that they had no knowledge, and had never heard, of any neglect of duty by Norton, and had never heard of his alleged practice of leaving switches after he had opened them. Railroad corporations can only receive notice of the condition of their roads, and the conduct of those employed by them, through their officers; and for the purposes of this case it will be assumed that the defendant, by the testimony produced upon the trial, established the fact that it had no actual notice of the manner in which Norton discharged his duties. But that is not sufficient to relieve it from responsibility. If the careless discharge of his duty was continued for such a length of time that a careful and diligent supervision of its employes ought to have brought it to its notice, then it is chargeable with knowledge. Whittaker v. Canal Co., 126 N. Y. 544, 27 N. E. 1042. The jury having found, as it must have found, that Norton neglected his duty in the manner heretofore detailed,—that he was accustomed to violate the rules of the defendant in that particular,—it was a question of fact, proper to be submitted to them, whether such violation of the rules and habitual neglect of duty had been so frequent and long continued as to satisfy them that a careful supervision would have brought it to the knowledge of the defendant; which necessarily included in it the further question of fact, did the defendant so diligently supervise the work of its employes as to prevent their becoming negligent and careless in the discharge of their duties, and violating the rules of the defendant established for their guidance? These were questions of fact proper to be submitted to the jury, and I do not think that the trial *901court erred in refusing to nonsuit, and permitting the case to go to the jury. No exceptions appear to have been taken to the manner in which the issues to be determined by them were submitted to the jury.

I do not think the court erred in admitting evidence that employes of the road knew Norton’s habit of violating the rule in question. While knowledge by Norton’s coemployes of his violation of the rules was not necessarily notice to the defendant, yet I think it was competent to prove that such violation was not secret, but was open and frequent. It was evidence that properly might be taken into consideration by the jury upon the question as to whether, if the defendant had diligently supervised its employes, it would not have discovered such neglect of duty. For these reasons, the judgment, I think, should be affirmed, with costs. All concur.