House v. Lehigh Valley Railroad

Smith, P. J.: This judgment has charged the defendant with a • breach of its duty, in failing to provide the plaintiff with a safe place to. work. The plaintiff was one of four section men under a section foreman. Upon the morning of the 30th day of January, 1903, while at work upon a bridge upon the defendant’s line he was struck by one of the defendant’s trains and severely injured. He was at work upon this bridge in due course of his employment, and this train757 was one that had been delayed about eleven hours, by reason of having jumped the track at a point westerly of this bridge. A rule of the company required the track foreman to ascertain at the nearest telegraph office what extra or special trains were scheduled. Of the regular trains they had due notice. Upon the morning in question the foreman had applied to the telegraph operator at Swartwood, who had communicated with the train dispatcher. The evidence of the foreman is to the effect that the telegraph operator after having communicated with the train dispatcher, told him that there was nothing extra scheduled for that day. The evidence of the operator is t~ the effect that he told the foreman that train 326 was in the ditch, and that the engineer had his leg broken. The train 326 was the train by which the plaintiff was afterwards struck. Here was a question of veracity between the foreman and the operator, and the question was submitted to the jury as to whether the operator negligently failed to inform the foreman of the fact that this train had been ditched and thereby delayed, the court charging the jury that the negligence of the operator, if such were'^ found, was the negligence of the defendant, for which a recovery could be. had. To this charge an exception was duly taken. I am unable to distinguish this case from the case of Slater v. Jewett (85 N. Y. 61). In that case a telegraph operator had failed to give notice to an engineer of a train, to whom he was required by the rules of the company to give notice as to the running of the train. By reason of that negligence a collision occurred, in which an employee upon the train was killed. It was' held that the negligence of the .operator was the negligence of a fellow-servant, and that the defendant was not liable therefor. While that case has been at times distinguished, it has never been overruled, and is, I think, a controlling authority in the case at bar. ' The respondent contends that if this be error, it is harmless, because of the admission in the appellant’s brief that the foreman’s negligence caused the injury. It is claimed that the foreman is the vice-principal, for the purpose of providing a safe place to work for the section men, and of warning them of known dangers. The answer to this contention would seem to be,- that if the act of the telegraph operator in failing .to give information to the foreman be [758] the act of a fellow-servant, it must be that the act of the foreman in failing to give the information, of the danger to the section hand is also the act of a fellow-servant. In other words, every reason for holding that the giving of the information by the operator to the foreman is a matter of “executive detail' exists for holding that the giving of the information by the foreman to the section hand is a matter of “executive detail.” It follows that the judgment and order must be-reversed, and a new trial granted, with, costs to appellant to abide the event. All concurred, except Kellogg, J., dissenting in opinion; Sewell, J., not sitting.