(78 Hun, 588.)

#### ENGELHARDT v. DELAWARE, L. & W. R. CO.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

sIaster and Servant—Incovpetency op Fellow Servant.

In an action against a railroad company for injuries to a fireman whose engine while waiting on a side track was placed so near the main track by the engineer that it was struck by a passing train, causing the injuries complained of, the evidence is not sufficient to show that the accident resulted from the incompetency of the engineer by reason of nearsightedness, where the only evidence of defective sight was that he could not see more than 350 feet, as it was only necessary for him to see a few feet in order to determine whether or not his engine was too near the main track.

Action by William Engelhardt, as administrator of Albert Engelhardt, deceased, against the Delaware, Lackawanna & Western Railroad Company to recover damages for the death of plaintiff’s intestate. A nonsuit was granted, and plaintiff’s exceptions were ordered to be heard at general term in the first instance.

Denied.

Argued before DWIGHT, P. J., and HAIGHT, BRADLEY, and LEWIS, JJ.

George W. Cothran, for the motion.

John G. Milburn, opposed.

LEWIS, J.

This action was brought to recover damages for the negligent killing of plaintiff’s son while in the employ of the defendant as a fireman on a locomotive engine, through the alleged incompetency of the engineer in charge of the engine. The case *426was tried at the Erie circuit, and at the close of plaintiff’s case the-court granted a nonsuit, upon the ground that the plaintiff had failed to establish a cause of action. '

The accident occurred upon the line of the defendant’s road, at the village of G-roveland, N. Y., on the evening of the 10th day of' February, 1891. The deceased was a fireman in the employ of the defendant, and he was, at the time he received his injuries, upon one of the defendant’s locomotives, which was at the time in charge of an engineer by the name of Schrieber. A freight train of cars-had been drawn into Groveland, from the east, by this engine, on. the evening of the accident. The train was manned by a conductor, engineer, fireman, and three brakemen. It was run off" from the main track upon one of the side tracks for the purpose-of allowing the regular express passenger train, going easterly, the use of the main track. After leaving the main track, the freight engine was uncoupled from the train, and was run upon another side or switch track, at a place from 15 to 20 rods distant from the-■main track. The conductor directed the engineer to remain there with his engine until the passenger train mentioned had passed. Instead of doing as directed, the engineer ran the engine along the-switch track, towards the main track, and so near to it that the express train, running at the rate of 38 miles an hour, came into-' collision with the freight engine. Both engines were wrecked, and' the deceased and one of the brakemen, who were upon the freight engine at the time, were killed. The engineer was not killed. It is the contention of the plaintiff that the accident was the result of the incompetency of the engineer, Schrieber; that his incompetency consisted of defective vision and habitual intoxication. The evidence upon which the plaintiff relied to establish the defect in the engineer’s eyesight came from the witness Thomas Lauer. His testimony upon that subject is as follows:

> ‘T know that Schrieber was near-sighted. I was m the engine with him. Some days he could see a little further than others, but he could not see a great distance. I should judge he could not see over 350 feet, very seldom. It was-not from intoxication. The man lost the sight of his eyes when he was a-lake fireman or lake engineer, before he came to. work for the defendant at all. His eyesight was in the same shape when he was running on an eng’mon the Lake Shore. "When I went to work for the defendant, in 1883 or 1881, he was then in the defendant’s employ as a yard engineer.”

The witness, upon his cross-examination, testified that the way he knew that Schrieber could not see further than 350 feet was by giving Mm signals on the track. There was no evidence that witMn the distance named, 350 feet, his vision was not perfectly good. It was not shown that he had any difficulty in seeing well enough to discharge his duties as engineer. It was not necessary for him fosee but a very few feet, to determine how near he was to the main-track, at the time of the collision. He was undoubtedly guilty of" negligence in running his engine so near the main track. The deceased and one of the brakemen were on the engine when it was run. down to the place of the collision, and they do not seem to- have discovered the proximity of the engine to the main track. It cannot,. *427with any propriety, be claimed that the accident resulted from any defect in the engineer’s eyesight.

The plaintiff gave evidence tending to show that Schrieber was in the habit of drinking beer, whisky, and other liquors, and that on two occasions he was intoxicated. The latter occasion occurred some two or three weeks prior to the accident. Three of the defendant’s officials called him to account for it, and threatened to dismiss him from the company’s employ if it was repeated. The witness who testified to seeing him intoxicated on the occasion mentioned had lived near him five or six years, saw him almost daily during a part of the time, and never saw him under the influence of liquor, except this once. There was an absence of any evidence that he drank any liquor on the day of the accident. The evidence failed to show that his drinking habit had rendered him either mentally or physically incompetent to discharge the duties of an engineer when he was sober. The head brakeman of the train was with Schrieber during the entire day of the accident, and testified that he did not drink that day, and that he was sober on the evening in question.

The plaintiff, we think, failed to make a case entitling him to recover. His motion for a new trial should be denied, and judgment directed for the defendant upon the verdict. All concur.