Keeley v. Erie Railway Co.

Miller, P. J. The plaintiff made out a case presumptively after he had proved that the intestate was a passenger, and that the accident was caused by the displacement of- the switch. The burden of showing a want of responsibility then rested with the defendant; and the allegation of criminality, on the part of some’ one not connected with the defendant, by intentionally deranging the switch and thus causing tlie disaster, should have been satisfactorily established to justify a nonsuit, and to authorize the court to take the case from the jury. The plaintiff’s counsel insists that the criminality of a person not connected with the road cannot be established by presumption merely, but must be proved with certainty, so as to dispel every other hypothesis. This is, no doubt, the rule (Edgerton agt. N. Y. and H. R. R. Co., 39 N. Y., 229); but this salutary principle does not, I think, go to the extent of demanding proof by an eye witness of a criminal transaction which is usually perpetrated in secret, and which no human being but the actor can positively know. Such a fact, like many others, may be established by circumstances, which are often as strong and convincing as direct testimony, and which lead to the same inevitable conclusion. The evidence shows that the switch was last used before the accident about five o’clock in the afternoon, when it was left all right with the rails in their places. The- switch-handle was locked and the hasp or clasp which is used to'secure the neck-rod from getting out of place was down,,and the wooden pin to keep the hasp or clasp down driven in with a stone, so that it could only be removed with difficulty? The neck-rod was connected with the crank of the upright rod with a pin underneath and a washer, which pin held both- the washer and neck-rod in their places. This pin was-split at the end, opened with an adz after it was put in, which made it fit so tight that it could not fall -out of itself and could not be taken out except by the use of force. At 6 o’clock in' the evening a hand-car went over the track and the switch was all [260] right. About 8 o’clock the night track-walker upon this beat examined the switch carefully in accordance with his usual custom and instructions; at 8.34 a train passed with safety, being the last one which passed; at 9.47, everything, so far as known, was safe and in good condition, and any change, therefore, in the switch, by which the train was thrown off the track, must have occurred between the- two last-named periods. The proof also shows that, after the accident, the iron pin and washer, on the end of the crank, instead of being found under the switch-gate, where only they would have fallen if they had accidently worked out, were found, the one on the head-block and the other slipped over the switch-handle, and the hasp turned up over back, and the wooden pin, which had been driven in with force, was gone. Upon this state of facts it is difficult to see how it can well be argued that the switch could have been displaced by the accidental loosening of either of the pins or the movement of the cars. If so, why was the iron pin and washer in the place where it was found; and what had become of the wooden pin which was gone 2 It would appear to be almost impossible to remove either of these pins by any ordinary means, such as hitting them with the- foot, as is suggested, or otherwise than by force; and if credible witnesses, unimpeached, are to be believed, then the conclusion is irresistible that some evil-minded person, with some object in view, had been tampéring with the switch and caused the calamity. Such being the case, the question arises whether the evidence establishes that the displacement was caused by the willful act of some third person, so as to authorize the court to take the case from the jury and to justify the nonsuit. The defendant had introduced as witnesses most of the persons who had in any way been connected with the railroad in the vicinity of the switch, or who had anything to do with it, and thus established by these witnesses entire innocence of any participation in the criminal act. True, all of the [261] employes were not called, and it is insisted that one day-walker on the track was not sworn; that no reason is assigned why he was not, and that it does not appear that others employed on the road were called. The proof seems to include all, or nearly all, the workmen who could have had any duty to perform, and the omission to call a single one, or the omission to prove that none others were employed, except those called, unless accompanied by circumstances of suspicion alone, taken together, does not establish that the act may have been done by one of the employes. Such evidence at most would be only negative evidence, unless the witness or witnesses called examined the switch after the 8.34 train passed, which is not claimed. The interest of employes would naturally be to protect the company from accident, and the presumption would be strongly against their criminality. Evidence, therefore, that they did not willfully change the switch and cause the accident was not required, and from the circumstances surrounding the transaction the judge at the trial was justified in holding that the rails were displaced by some unknown person. Upon the question of the defendant’s negligence, the evidence showed quite conclusively that every means had been employed which prudence, skill and care required to guard against danger, and I think it does not appear that there was any omission, either in the means or character and capacity of the men employed in taking care of the switch or managing the train. The switch and pin and the crank and all the fixtures were of the most approved kind, the very best in use; and the testimony shows that, before the accident, spikes were used to make the switch more secure. There was nothing for the jury upon the question whether any better switch-key,-headed or burred, might not have been used, as the testimony showed that the latter were not as good as those which were used, and more liable to get loose. Nor was there any question as to lights at the switch during the [262] night, as the proof showed they were not of any advantage and were not generally in use. The judge was clearly right in refusing to submit the various requests made by the plaintiff’s counsel to the jury, and in granting the motion for a nonsuit. The question put to the witness, Shea, as to his instructions to the track-walker “ to examine both switches and take the locks and pull them to see if they locked,” etc., was competent for the purpose of showing the exercise of proper care and vigilance. So also the questions put to this and another witness as to the men being prudent, careful, etc., was properly received upon the same ground. As, however, the plaintiff failed, upon the whole evidence, to sustain his action, it is of no consequence whether the testimony was competent. There being no error, a new trial must be denied and judgment ordered for the defendant, with costs. Daniels and Danfobth, JJ., concurred.