#### Mary A. Cox, as Administratrix, etc., of James D. Cox, Deceased, Respondent, Appellant, *v.*The Delaware and Hudson Company, Appellant, Impleaded, with United Traction Company, Respondent.

Third Department,

October 2, 1908.

Railroad — negligence — collision at grade crossing — failure to use interlocking switches and signals — when signalman is fellow-servant — evidence — agreement between intersecting railroads casting burden of precaution'upon one of them.

Where an electric railroad crosses the switching yard óf a steam railroad at ■ grade, and only one out of five tracks is used for through trains, the railroad is not negligent in failing to use interlocking switches and signal devices which would congest traffic and seriously interfere with the use of the yards for switching purposes, where but few trains passed over the main track daily, while the switching- tracks were continuously in use.

A person employed by the electric railroad at such crossing to give signals to motormen indicating the condition of the railroad tracks, but without ¡rower to control the action of the electric car, is not the *alter ego*of the master, but a fellow-servant of the conductor, and there can be no recovery because of his negligence, r ' ■

On the issue as to whether the defendant steam railroad was negligent in passing such crossing at high speed without warning, it is entitled to put in evidence an agreement, made under section 12 of the Railroad Law, between it and the electric road providing that at the crossing the steam railroad should be under no obligation to guard, warn or protect the cars and servants of the electric road, which should proceed thereover solely at its own' risk. This, although the agreement was not signed by a conductor of the electric road who was killed in a collision, and he did not know of it, for the railroad was entitled to show the precautions taken and that it did not rely merely upon the voluntary precautions of the electric road, but upon an agreement whereby the latter was required to take precaution.

Smith, P, J., and Kellogg, J., dissented. , „

*364Appeal by the plaintiff, Mary A. Cox, as administratrix, etc., from so much of a judgment of, the Supreme Court, entered in the office of the clerk, of the county of Rensselaer on the-loth day of-October, 1906, as dismisses the complaint by direction of the court as to the defendant United Traction Company, after a trial at the Rensselaer Trial Term. • ’ “

Also an appeal by the defendant, The Delaware and Hudson Company, from that part of the said judgment which is in favor of the plaintiff and against said defendant for $14,560, entered upon the verdict of a jury, and also from an -order bearing date the 10th day of October, 1906, and entered in said clerk’s office, denying the said defendant’s motion for a néw trial made upon the minutes.

*Thomas S.*Fagan, for the plaintiff.

*Lewis E.*Carr, for the appellant, the Delaware and Hudson Company.

*John E. MacLean,*for the. respondent, United Traction Company.

Cochrane, J. :

This is.an action to recover damages for the negligent killing of the plaintiff’s intestate. The defendant, the Delaware and Hudson Company, operates a steam railroad extending northerly and souths erly through the village of Green Island. Its tracks, five in number, are crossed in that village at right angles- and at grade by a single track of the defendant United Traction Company, which operates an electric street surface railroad. Sevepty-fonr feet westerly of this crossing is another crossing, but that seems to have no bearing on the questions involved herein. Deceased was a con- . ductor ,in charge of one of the cars cf the United Traction Company and was killed in a collision between such car while proceeding easterly and crossing the tracks of the steam railroad company and- a train of said company which was proceeding southerly.

The rules of the electric company required its cars to stop before crossing the steam railroad. A signalman was employed by said company at the place in question, whose duty it was to go on- the tracks of the steam railroad and from that point of view to signal the motormán if it was safe to cross, and the latter was by rule prohibited from starting his car until he received such signal. These. *365requirements seem, to have been complied with at the time of the accident. The electric car came to a full stop. The signalman went forward to the main track of the steam railroad and was seen to look in both directions and signal to the motorman. The latter signaled the conductor who was on the rear platform of his car, and receiving from him an answering signal the meaning of which was *that the oar at*his end was in readiness to proceed, the motorman advanced; and when directly on the crossing heard the shriek of the approaching train, and the collision occurred.

At the easterly side of this crossing was a gate operated.by a towerman in the employ of the steam railroad company, and who was stationed in a tower about ten feet north of the electric road and on the westerly side of the steam road. The electric road at this'place is on a public highway,'and the operation of this gate seems to have been for the protection of the public using the highway.

A short distance north of the tower were locomotives standing"on the tracks of the steam railroad and emitting steam. The towerman testified that because of the steam obscuring the track he was unable to see, and that he did not see or hear the approaching train until it was about opposite the tower.- There were also freight cars standing north of the locomotives. The motorman also testified that no warning was given by bell or whistle until he was on the crossings and that until then because of the obstructions he was unable to see the approaching train. When the electric car stopped before the crossing the gate on the opposite side of the crossing was down. The motorman testified that it was raised before he started his car. The towerman testified that he'did not raise the gate until the electric car had started, when he raised the gate to permit the car to cross. The signalman was not called as a witness. It seems probable from the testimony that because of the steam from the locomotives standing on the tracks he did not see the approaching train, and without waiting for the steam to pass away improperly signaled the motorman to proceed.

Evidence was adduced of the existence in other places of interlocking switch and signal devices at points where railroads intersect at grade. By such a device properly operated it is impossible for a collision to occur at railroad intersections. The plaintiff contended *366at-the trial that it was the duty of these defendants to have; established such a system, and that if such system had been established the accident would not have occurred. The learned trial justice,after .the evidence had been received, struck it out and dismisse’d the complaint as to the defendant United Traction Company at the conclusion of plaintiff’s evidence.

As I understand the evidence of plaintiff’s witnesses on the subject of these interlocking switch and signal devices, they concur in saying that it is impracticable to use such devices in railroad yards for the reason- that they would congest traffic and seriously interfere- with the usefulness of the yards for switching purposes. Although the electric railroad at the point in question- was on a public highway, nevertheless the crossing was well within the limits of one of the yards of the steam railroad company. Only one of the five tracks of the latter road was a main track on which through trains traveled. All the others were used for switching and storing cars. It is true that this interlocking device might have been installed between the main track and the electric road and that the collision occurred on the main track. It appears, however, that only seven or eight trains passed during the day time over the main track, while over the other tracks locomotives and trains were ¡almost continuously switching and moving. It hardly seems, therefore, that these defendants were required to establish a system the only effect of which would be to protect the crossing against a small fractional part of the danger and thereby possibly to increase the danger of collision on all the tracks except the main track. Uor is it probable, under the evidence here presented, that the Board of ¡Railroad Commissioners, had their attention been called to the situation, would have directed the erection of such devices under section. 36 of the ¡Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1898, chap. 466). We need not, therefore, consider further whether it was the duty of the United Traction Company to invoke the aid of that section for the purpose of compelling co-operation or concerted action by its codefendant with a view to the erection of these devices. Obviously neither defendant could erect such devices without the consent or co-operation of the other, even if such devices were practicable ¡at an -intersection within a railroad yard.

*367Plaintiff requested to go to the jury as to the "United Traction Company on the sole grounds that tile signalman was the vice principal or *alter ego*of said defendant or under the Employers’ Liability Act* exercised the functions of a superintendent in signaling the motorman. The signalman did not in any proper sense exercise control or supervision over the motorman, nor was' he vested with discretion in directing him when to proceed with his car, nor did he have power to vary or control the conduct -or action of the motorman. The signal meant merely that the signalman saw no danger, and the motorman, under the rule, was then not required but permitted to proceed with his car, hot in obedience to the command or direction of the signalman, but in obedience to the command of his employer, promulgated to him through the rule above mentioned, that he should not start his car until he received the proper signal from the signalman. The duty of observation might have been cast solely on the conductor or motorman. But a third man was employed to make observations and communicate them to the motorman. That was the extent of the signalman’s duty. His functions *were*largely mechanical and not materially different from'those which are performed by an interlocking switch and signal device, or some other appropriate mechanical device where such exists. The signalman was clearly a fellow-servant of the motorman, and of the deceased, and for any negligence on his part the United Traction Company is. not liable herein. The complaint as to such company was properly dismissed.

The trial justice submitted to the jury the question of negligence on the part of the Delaware and Hudson Company based on the alleged speed of its train and the absence of sufficient and timely warning. The evidence presented a question for the consideration of the jury as to the negligence of' said company. Rulings aré urged' as grounds of reversal. Only one need be considered.

The appellant company offered in evidence the agreement made between it and' the United Traction Company providing for the intersection of the roads in question. . This agreement was made under section 12 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676). The agreement contained a *368provision that the steam railroad company should be “ under no-obligation to guard, warn and protect the cars and servants-employed thereon ” of the electric railroad company when on the-premises of the steam railroad company and that such ears and servants should “ at all times proceed thereover solely at their own risk.” This agreement was excluded on objection of the plaintiff' and I think erroneously.

A party charged with negligence may ordinarily show all that hell as done to avoid the accident. He may show all the circumstances-bearing thereon and the entire situation. This agreement was net-signed by the deceased, nor does it appear that he was aware of its-existence, and it was not conclusive against the plaintiff. But the-appellant company had the right to show the manner of doing-business at that crossing. It also had the right to show all the-precautions it had taken to guard against accidents. - One of such precautions was to make an agreement with the intersecting company, the effect of which was to cast upon the latter the duty of warning its employees of approaching trains. How effective such precaution was or to what extent the steam railroad company was-justified in relying thereon were questions for the consideration of the jury. Had the Delaware’and Hudson Company employfed a-man to warn the cars of the electric company of approaching trains-undoubtedly it could show such fact as presenting one element for the consideration of the jury, as to whether it had taken necessary and reasonable precautions to avoid collision. The effect of the-agreement excluded by the court was that the United Traction Company was to give such warnings. The latter company acted on such agreement by employing a signalman and making rules requiring its cars to stop before crossing and await information from the signalman. It does not entirely meet the argument that it appears in evidence that the electric company in fact made rules- and employed á signalman. The appellant company had a right to show that it was relying not merely on a voluntary or gratuitous-precaution on the part of the electric company which the latter company might or might not observe, but on an agreement whereby the latter company was required to take such precaution. The case of *Connoly*v. *New York Central & Hudson River Railroad Co,*(35 App. Div. 609) in principie applies- here. There in *369an action similar to this it was held reversible error to exclude a, contract similar to the one in question between a steam railroad company and an intersecting street surface railroad company. Under the charge of the court this appellant company has been found guilty of negligence in approaching this.crossing at a high, rate of speed and without ample warning. As between the two companies it was by agreement relieved from the duty of giving warning,, and knowing as it did that the other company was under such agreement taking precautions to warn its employees, it was its right to have-the jury consider the question as to how far if at all because of such¡ agreement it was relieved of such duty as to those employees.

The judgment and order should be reversed and a new trial granted; as to the Delaware and Hudson Company, with costs to said company against the plaintiff to abide the event, and the judgment should be affirmed as to the United Traction Company, with costs-to said company against the plaintiff.

All concurred, except Smith, P. J., dissenting as to the Delaware- and Hudson Company, and Kellogg, J., dissenting as to both defendants.

Judgment and. order reversed and new trial granted as to the-Delaware and Hudson Company, with costs to said company against plaintiff to abide event, and judgment and order affirmed as to-United Traction Company, with costs .to said company against, plaintiff.

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 See Laws of 1903, chap. 600.— [Rep.