Mikos v. New YorK Central & Hudson River Railroad Co.

Spring, J,: The complaint sets out and the proof tended to establish a cause of action within the Employers’ Liability Act (Laws of 1902, chap. 600). - The plaintiff’s intestate Was in the: employ of. the- defendant engaged in cleaning the engines from ashes in an- ashpit provided, [537] for that,purpose. This ashpit was connected with the defendant’s yards at East Buffalo, w'as constructed of cement and adaptable for the purpose intended. It was the practice to run cars, from which the ashes needed dumping, on tracks over these pits, and men crawled under the engines and scraped out the ashes with a hoe, and plaintiff’s intestate had been doing that work for some time. On the 21st day of November, 1903, at about noon an engineer of the defendant ran on one of these tracks two engines coupled together, the first one a live engine, and the one in the rear a dead crippled engine. A man named Illman was' in charge of this branch of the business on that day in the absence of the regular, superintendent or foreman, and he always acted in that capacity when the superintendent was not present. Illman had control of the men, directed them in the work of handling these engines, decided whether they should be dumped, when and where to. be removed, and within his sphere was in supreme command. He was, therefore, acting as superintendent within the meaning of the Employers’ Liability* Act. (MeJSugh v. Manhattan JR. Co., 179 N. Y. 378; Faith v. F. T. C. & JBJ. JR. JR. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556 ; MoBride v. Few Yorlc Tunnel Co., 101 App. Div. 448.) , , Illman marked these engines to be dumped and it was expected this work would be done during the noon hour. The plaintiff’s intestate was under the rear engine, as was necessary, hoeing out the ashes . into the pit provided for them, when the engines were set .in motion by Chamberlain, a hostler, without sufficient warning to Mikos, the decedent, and he Was run over and killed. The proof does not disclose precisely how the accident occurred. The bell of the engine was rung just as it started, and it is a fair inference from the evidence that -he attempted to escape from his perilous situation when he was crushed with the drivewheels of the engine. Without detailing the facts and inferences permissible, suffice it to say we think the jury had a right to acquit Mikos of any fault which would prevent the plaintiff recovering in this action. Chamberlain during the noon hour was eating his luncheon in a shanty twenty or twenty-five feet from the end of the ashpit, and his business was to move engines from the ashpit when. ordered to do so. When he had nearly finished his luncheon, Illman came [538] to the shanty and directed him to remove these two engines. The nub of the litigation is over this direction.' Chamberlain was not sworn and was out of the State at the time of the trial. Brown, a hostler employed by the defendant, was in the shanty with Chamberlain ánd, testified that lllman came there and “ told Chamberlain to take them two engines on that pit over to the coal chuté ; they were dunqied out and the second engine was disabled; they were both coupled together; take them before they died and get them in the house so as to make room for the switch engines. * * * Take them; they are ready. * * * The first one was dumped out and the second one disabled. * * * ' Take them as soon as possible before they die * * * so as to make room for the switch engines coming in there at the dinner hour.” lllman disagreed with this version and said he simply told Chamberlain “ when those engines are ready, keep them coupled together and take them off.” The court in submitting the discrepancy in this testimony to the jury and its effect as the'pivotal question in the case said : “Mow, gentlemen, if it (the injury,to the plaintiff’s intestate) did occur solely through the negligence of Chamberlain, then the plaintiff is not entitled to recover. But if Chamberlain was- negligent, and lllman was also negligent, and the accident would not have happened but for the negligence of lllman in respect to the matter to which I have called your attention, then for that act of negligence upon the part of lllman in the respect to which I have called your attention the defendant is responsible, for at this time he was exercising acts of superintendence as I view the case, and under the law the defendant is liable for such negligence.” - The only rule in any way pertinent to this situation was one providing, “ The engine bell must be rung when the engine is about to move.” That rule is of little significance in this case, for Chamberlain rang the bell as his engine started. The evidence showed that it "was almost the invariable practice for the engineer, before taking ■his engine'from the ashpit, to look under tho engine and ascertain if the koer .had finished the dumping of the ashes, and, if not, to give him personal warning. .It is patent that some warning of this kind must be essential 'to the safety of the men under the engine, rather than to depend for warning upon the ringing of the bell or' [539] by sounding the whistle just before starting the engine, and the necessity is more pressing when two engines are coupled together and the workman is under the rear engine. The crucial question is, therefore, whether Chamberlain was justified in departing from the usual practice because Illman told him the engines were dumped and wére ready to be taken out. Illman was the man -who represented the defendant. For the purpose of regulating the movements of Chamberlain in handling and removing these engines he was the defendant. Chamberlain knew that Illman was his superior, and that his special domain was these ash-pits and the control of these engines. Illman came directly from the engines. The customary time for dumping them was an hour, and that time had already elapsed. He testified: “We have strict orders not to delay them any more than we can possibly help; to get them off as quickly as possible.” With this injunction in mind he gave the direction to Chamberlain. We think the hostler had a right to rely on these statements of Ilhnan, that the engines had been “dumped” and were “ready.” It is the same as if the defendant, coming directly from the engines, advised the engineer that they had been cleaned and were ready to be removed. They were put in there for the sole pmqiose of being cleaned under the direction of Illman, and if he told Chamberlain that the work had been done and they were ready tó be removed, the jury certainly had a right to find that Chamberlain was excused fiom investigating on his own account. He had been instructed ‘ by the foreman “ to be careful to look around to see it was clear, ring the bell and also blow the whistle.” Illman, his immediate' superior, in effect told him there was no need of spending the time to look under the engines or make any personal inspection,for they, were ready to be taken out. Ilhnan assumed to possess knowledge of the cleaning of the engines and their readiness to be removed. • It certainly would be carrying the rule beyond reason to hold that where the defendant has assumed to say to his servant that every danger has been removed, and to do certain work in reliance upon that statement, for the defendant to be absolved from liability because the servant had no right to accept the statement, but must act precisely as if it had not been made. Illman, the representative of the defendant, imparted the information for the benefit of Cham [540] berlain and gave instructions, expecting them to be obeyed. Chamberlain had a right to accept the facts stated and obey the directions, and the defendant, who interfered and authorized the departure from the prevailing practice, cannot be heard to say its orders should be disregarded or its information treated as unreliable. Chamberlain finished his luncheon in about five minutes, ran out the engines without investigating at all, and, • as a result of this omission, the plaintiff’s intestate was killed, and the jury were authorized to impute the blame to the defendant. The judgment and order should, be affirmed, with costs. All concurred, except McLennan, P. J., who dissented in an opinion, and Kruse, J., not sitting.