Bailey v. Jourdan

Goodrich, P. J. : Daniel Bailey, the deceased, was a policeman in the service of the city .of Brooklyn. At about half-past eleven on the evening of Sep- , tember 5, 1896, which was dark, windy and rainy, the deceased and one Morgan, another policeman, were sent by the police sergeant from Sheepshead Bay to the twenty-fourth precinct station house, at the west end of Coney Island, with the police ambulance, for the purpose of bringing to the station house a drunken female prisoner. [388] Morgan was detailed by the sergeant to drive, and was sitting on the front seat driving,- while Bailey was inside of the wagon. The side ■’ curtains were down and closed. The seats inside consisted of two benches running along the side of the wagon, on ■ one of which Bailey was sitting. ' Morgan testified that he was driving down Emmons avenue, a public street or highway, and had reached the Manhattan Beach Railroad track, where he stopped, looked' and heard a train coming and waited to let it pass, after which lie crossed that track and proceeded until he reached the Brighton Beach track, which was about thirty feet distant and parallel with the former road; here he stopped again, leaned- forward and looked both ways. At. this time he saw a green light which appeared to him to be stationary; he also'listened to hear a bell or other' signal,; heard none and started to cross the track. This green light was on a dummy engine which was backing down toward Emmons avenue, coming at a speed of som'e twelve miles an hour, and struck the wagon. . Bailey was killed by the collision. The defendant moved for a nonsuit at the. close of the plaintiffs case, and again at ■ the close of the testimony, contending that the deceased was negligent' in failing to watch and wait for a coming .train.; that Morgan, the driver,, was also negligent, and that his negligence must be imputed to the deceased; and also on the ground that no negligence on the part of the defendant had been shown. The testimony does not disclose any negligence on the part of the ■ deceased personally. It was the duty of Morgan and not of Bailey to look out for coming trains. Morgan had exclusive charge of the wagon, and it makes no difference that Bailey and Morgan were sent.'out by the sergeant in the common employment of bringing back a prisoner. Bailey had nothing to do with the management of the wagon; this was a separate and independent duty to which Morgan was assigned, with which Bailey had no connection and over which he had no control. The appellant cited various cases, among them Beck v. East River Ferry Co. (6 Robt. 87), where the deceased was held chargeable with the neglect of his comrades as well as his own. The plaintiffs in that case were evidently boys who had gone out "together in "a rowboat for amusement. They .were engaged -in a joint expe [389] dition, and no one of them had absolute individúal control of the management of the boat. In the case of Donnelly v. Brooklyn City R. R. Co. (109 N. Y. 16) the negligence of a comrade was imputed to the plaintiff on the ground that they were engaged in a common employment, and the opinion shows that they were both engaged in the management and directing the control of the wagon. It was assumed in the opinion that they were thereby comrades engaged in a common employment. In the case of Harris v. Uebelhoer (76. N. Y. 169, 177) the deceased was in a skiff propelled by her husband and was run down by a tug.' The husband was blind and .the deceased was giving directions as to the management of the boat, while the husband was sculling, and both were participating in the management of the boat. I find no cases which would justify the appellant’s claim that Bailey, the deceased, and Morgan, the driver, were jointly in control of the wagon under the circumstances disclosed by the evidence. Bailey had nothing to do with the management of the wagon, and liad no control over or responsibility for the method of driving; and hence, the negligence of the driver, if any, cannot he imputed to him. In the opinions in the case of McCormack v. Nassau Electric R. R. Co. (16 App. Div. 25), and in the decision on the motion for reargument (ante, p. 333), this court held a similar doctrine. The negligence of the defendant was a proper question to be submitted to the jury. Formerly there was a statute requiring the ringing of the bell or the giving of some other signal by an engine crossing a highway. This statute had been repealed at the time of this accident, so that the proper question for the jury was not whether the engineer was complying with the statute, but whether be exercised adequate precaution under the circumstances; and this was properly submitted.under the following language : “Now, were these adequate precautions, considering the circumstances, that. should have been adopted by those men in running there ? If they were, if the rate of speed was not excessive, if the lights were lit, if the bell was rung, if the whistle was sounded, was there anything moro - that those people could have done under the circumstances? "Was there any other precaution that could reasonably have been [390] expected from them % If there was not, then, gentlemen, the con> pany which employed these men is not responsible. If there .was an omission, and it is proved to you satisfactorily by a preponderance of evidence, and as a result of that omission this accident occurred and this death resulted, why, then, this plaintiff is entitled to-recover.” This was in strict accordance with the opinion of the Court'of Appeals in Lewis v. N. Y., L. E. & W. R. R. Co. (123 N. Y. 496) and in Vandewater v. N. Y. & N. E. R. R. Co. (135 id. 583), in. which the former law as to ringing, a bell or giving other signal, and its repeal, were discussed and the effect of the repeal expressed in substantially the language which has been already stated. The motion to. nonsuit was properly denied; the question of the defendant’s negligence was properly submitted to the jury, whose verdict we are unwilling to disturb, and the .judgment must be affirmed. All concurred. Judgment and order unanimously affirmed, witli costs.