#### Le Croy *v.*New York, L. E. & W. R. Co.

*(Supreme Court, General*Term, *Fifth Department.*

June 20, 1890.)

Master and Servant—Personal Injuries—Contributory Negligence.

In an action for personal injuries sustained by the insufficiency of the brakes to hold the train, on which plaintiff was a brakeman, while going down a steep grade, defendant relied on printed rules that instructed the brakemen to test all the brakes before leaving a terminal station, which plaintiff had failed to do. Plaintiff had never read the rules, and was ignorant of their existence. Held, that he was not negligent in failing to know rules which had never been brought to his attention.

Appeal from circuit court, Chautauqua county.

Action by Frank T. Le Croy, a brakeman, against the New York, Lake Erie & Western Railroad Company, for personal injuries. Judgment for plaintiff. Defendant appeals.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

*James H. Stevens,*for appellant. *John G..Record,*for respondent.

Corlett, J.

In April, 1887, 40 cars loaded with coal were run by defendant on its track from Brockwayville, in the state of Pennsylvania, northerly, in the direction of Bradford. Johnsonburg was a terminal station on the route, where the train stopped two hours, taking a side track. The plaintiff was one of the four brakemen who started with the train, upon which there was a conductor, engineer, and fireman. The distance between Brockwayville and Bradford was upwards of 60 miles, and the time would be from 7 to 48 hours. The defendant’s road is down grade, going east, or rather north, after leaving Crawford Junction, on an average Of from 100 to 102feet to the mile for a distance of 5 or 6 miles; the steepest part being about half a mile outside of Crawford Junction. But the grade is not uniform,—in some places greater than others. While going down this grade the train went to pieces, and the cars were piled one upon another. A wheel was broken, and the plaintiff was severely injured in the disaster.' At the time of the accident the train was running at the rate of about 60 miles an hour. In January, *3831888, the plaintiff brought this action, which was tried in May, 1889, at May-ville, and resulted in a verdict for the plaintiff of $3,500. A motion for a new trial was made on the minutes, and denied. Judgment was entered, and the defendant appealed to this court.

The position of the plaintiff on the trial was that the defendant neglected to furnish safe and sufficient cars and brakes for the use of the train. The defense was based on the assumption that the plaintiff disobeyed the standing rules of the company, which caused the disaster. Those rules, so far as material, are as follows: “Brakemen of freight trains will receive instructions from the division superintendents. They will be under the immediate control,- and must obey the orders, of the freight-train conductors. At terminal stations, they must obey the order of the yard-master. They will have the duty of coupling the freight-cars, applying the brakes, using the signals, working the switches where there are no switchmen, assisting in loading and unloading freight, and the care of their cars and caboose of their train while their train is on the road, and will be held responsible for the strict performance of their duties in accordance with the rules of the company, and for prompt obedience to all orders of the conductors. They must report at the terminal stations at the time appointed, and assist in shifting and making up of trains; and before starting they must test the hand-brakes, and see that they are in proper condition, and work easily, and see that the train signals are in good order, and ready for immediate use. They must not leave their brakes while the train is in motion, or take any other position in the train than that assigned by the conductor. ” By these instructions, it was the duty of the plaintiff, before the train left Brockwayville, to inspect the brakes, if he had knowledge or notice of these rules, and also at Johnsonburg. The evidence shows that the plaintiff made no inspection. There was an implied contract between the plaintiff and defendant, when he entered their employ as a brakeman, that the cars upon which he was to labor should be reasonably safe; also the brakes, and that they should be in working order. The breaches of duty by the defendant alleged on the part of the plaintiff were that there were not a sufficient number of brakes, and that they were not in proper order. The evidence tended to show that these 40 cars loaded with coal required from 30 to 35 brakes to make them safe going down grade, and also tended to show that there were not this number of brakes; also that many of them were defective, and that, in view of the grade, the defendant was negligent in omitting to furnish a sufficient number of brakes; also that it omitted to keep them in proper condition. The general rules of the defendant provide, among other things, that officers, agents, and employes must become familiar with the regulations of the company, and observe the rules and strictly enforce them upon those under their control, and that ignorance of the rules will not exempt or excuse them for neglect of duty. Unless the plaintiff was negligent in omitting to comply with the rules, it is not claimed that he neglected any duty at or before the accident which in any way contributed to its production. The plaintiff testified on the trial that he never read those instructions, that he never received any information of the existence or import of the directions above quoted, and that he was ignorant of their existence. The trial justice charged the jury, in substance, that those instructions were reasonable, and that, if the plaintiff had knowledge or notice of them, it was his duty in all respects to obey. The justice further charged that, unless they were brought to the plaintiff’s attention so that he knew or was informed of their existence, or unless put in his possession to be read by him, and that if he was not informed of this book containing instructions as to his duties, and was ignorant of them, or unless it was put where it was accessible to him, they would not bind him, and he would not be guilty of negligence for want of knowledge of what they were; that, if the plaintiff knew his duty, it was manifest he had neglected it by omitting to examine or inspect the brakes.

*384The result of this appeal depends upon the correctness of the charge of the, trial justice upon this question. All the rules and regulations of the company must be construed in reference to known facts and obvious surroundings. A brakeman, while an employe, occupies a comparatively subordinate position. It is reasonable to assume that he would not be active or vigilant in acquiring a knowledge of printed or written rules unless his attention was called to them. It is fair to assume that when a brakeman is employed the duty devolves upon the company of calling his attention to its written or printed rules needful to him, and either furnish him with copies, or inform him where he will find them. Ordinary observation teaches that, unless a laborer’s attention is called and directed to such matters, their necessity or importance will not occur to him, even though he knows in a general way of their existence. He would naturally assume that they were for the information and instruction of those in position and authority, and that no personal obligations rested upon him to examine and master their contents. It is matter of universal observation that those employed to perform manual labor, upon whom no duty of supervision or direction is imposed, are not vigilant in acquiring knowledge of their own obligations beyond instructions or information distinctly given or conveyed. As to third persons, where life or property is involved, it would not be a reasonable excuse for the company to say instructions were printed, and the employes, if vigilant, might have familiarized themselves with their nature and import. The answer would be, where liability turned on that question, that the company’s duties required the giving of full and implicit instructions. The question here presented is whether a different rule obtains between the company and the brakeman. In the light of the above suggestions, it ought not to be absolved from liability unless it imparts full and clear information to its employes. It ought not to be allowed to escape on conjecture or possibilities. While the brakeman assumes, by virtue of his employment, the risks incident to his vocation, still naturally the acquisition of a knowledge of written or printed rules was not included among those risks, which should be limited to the ordinary and visible hazards incident to the discharge of his duties. Testing the charge by these rules, it is not believed that the learned justice fell into an error which requires a reversal. In *Ford*v. *Railroad Co.,*22 N. E. Rep. 946, and *Byrnes*v. *Railroad Co.,*113 N. Y. 251, 21 N. E. Rep. 50, a construction of questions of fact by the court disposed of each case. The same is true of *Disher*v. *Railroad Co., 2 N.*Y. St. Rep. 277, affirmed 21 N. E. Rep. 415, where the facts were' more analogous to those in the case at bar.

It does not appear that the damages were so excessive as to require a modification on that ground. The judgment and order should be affirmed.