counter-claim upon the mortgage in controversy while in the hands of Mrs. Currie; alleging a debt due from her to the mortgagor for more than the amount of the mortgage, but there is not the least evidence of any such debt. Judson also claims in his answer to have had other prior rights and liens but gave no proof of them. "The appellants seek to overcome this difficulty in two ways. They say that the answers are in evidence, and their allegations must be taken as true. They were not put in evidence at all. There is in the case no trace of any such fact, nor of any use of admissions so connected with other allegations as to be inseparable. "But an explanation of this lack of proof is made on the part of Judson. Among the papers printed is what purports to be an extract from the clerk's minutes, which reads, ‘Judgment for pl'ff, with costs, and dismissing complaint as against defendant Judson.' This memorandum is dated March 14, 1887. It formed no proper part of the judgment-roll, and is not the decision actually made, for that bears date July 3, 1888, is signed with the initials of the trial judge, orders judgment of foreclosure and sale subject to the lien of Judson's mortgage, is followed by the formal findings and the judgment in accordance therewith. If the appellant Judson was misled or deceived by the court, so as to have deemed his proofs needless, his remedy, I think, was an application to open the case and be let in to make his further proofs. Instead of that, he seems to have proposed findings and filed exceptions with a perfect understanding that the action was not dismissed as to him. "I can discover no error in the record which warrants a reversal, and the judgment should be affirmed, with costs." Samuel W. Judson for appellants. James D. Bell for respondent. FINCH, J., reads for affirmance. All concur. Judgment affirmed. 128 662 | 151 584 128 662 170 1468 AGNES E. ABEL, as Executrix, etc., Respondent, v. THE PRESI- A railroad company is bound to guard its employes against negligence of (Argued June 2, 1891; decided October 27, 1891.) APPEAL from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made May 6, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial. This was an action to recover damages for the negligent killing of Perry Abel, plaintiff's testator, who, while in the employ of defendant as a car repairer, was caught between two cars standing upon a side track for the purpose of being repaired, upon one of which he was working, which were pushed together by a switch engine. Further facts are stated in the opinion, which is given in full. "The judgment of nonsuit rendered on the first trial of this action was reversed by this court on the ground that the question of negligence in respect of the duty of the defendant to make and promulgate proper rules for the protection of car repairers, should have been submitted to the jury. (103 N. Y. 581.) The second trial resulted in a verdict for the plaintiff. This appeal is from the judgment on the verdict. "The additional evidence given on the last trial on the subject of rules would not have justified the trial court in determining as a question of law that the defendant's duty in this respect had been performed. The company neither by its board of directors nor by any general officer or superintendent, ever enacted or published any rule for the special protection of car repairers, nor was any instruction, verbal or otherwise, ever given by any superior officer to their subordinates on the subject. Rule 63 of the general rules of the company was enacted primarily, as its language shows, to regulate the movement of ordinary trains and to prevent collisions, and had no reference to the switching of cars on the repair tracks. It stated what doubtless was generally understood by employes, that a red flag by day or a red lantern by night was a danger signal. But it gave no instructions for the protection of car repairers, either as to the duty of maintaining the signal while the car repairers were at work, or as to the persons by whom it might be removed. At Mechanicville, where the accident occurred, it seems to have been left to Cowen, the foreman of the repairers, and to Donnelly, the foreman of the switchmen, to regulate the matter in their discretion. Cowen testifies that he told his men that they were to work under the protection of a red flag, and that he designated Hickey and Patrick, who worked at the north end of the cars on the cripple track, and Dwyer and Wicks, who worked at the south end, to put a red flag in the draw-head of the outermost car at the respective ends, before going to work, and to protect the same, and also that he informed Donnelly and the brakemen that the repairmen worked under the protection of the red flag. "Donnelly on the first trial testified substantially that the only rule he heard of was rule 63, and what the repairmen told him, viz. that they worked under the protection of a red flag. It is evident that if this was the extent of the regula tions on the subject, the repairmen had a very inadequate protection. If the red flag was put up and maintained, wherever the repairmen were at work, and the meaning of the signal was known by the switchmen, as it probably was, the repairmen would be protected, except as against the reckless or heedless conduct of the switchmen. But it was essential to the efficiency of the rule that it should designate the persons authorized to remove the flag. It was shown that this was done by the rules of the New York Central Railroad, which provide that the repairmen alone should have power to remove the flag from cars on a repair track. The same rule was recommended in railroad manuals published before the occurrence of the accident in question. It is obvious that such or a similar regulation, which should place the duty and responsibility of removing the flag upon persons officially designated, was essential to the car repairers' protection. The rule that they should put up a red flag when they commenced work, unaccompanied by a rule prohibiting the brakemen or other employes from taking it down when they desired to remove cars from the cripple track, unless by the consent or direction of the repairmen engaged in repairing the cars, would leave the repairmen exposed to the danger of the mistake or negligence of the brakemen. If it was left for the brakemen to determine for themselves whether there were men engaged in repairing the cars, and whether the flag might be safely removed or not, and to act upon their judgment in removing it, the chances of accident would be greatly increased. "It appears from the evidence that it was the common practice of both Donnelly and the brakemen to remove the flag when they supposed there was no one under the cars. On another occasion, a repairman came near being caught and injured in consequence of this practice. "It is settled doctrine that a railroad company is bound to guard its employes against negligence of co-employes so far as it can, by the enactment and promulgation of reasonable rules in the management of its business. "The rule that the servant takes the risks of the business is subject to the qualification that the master must exercise reasonable care to guard the servant while engaged in his duties, from unnecessary hazards, including hazards from negligence of co-employes. In the business of a railroad this duty is especially important in view of the dangers of the employment, and the serious consequence, likely to ensue from the negligence of co-employes. "There can, we think, be no doubt that upon the evidence given on the former trial, it was for the jury to say whether the defendant had discharged its duty toward the decedent. It had made no distinct rule for the protection of the repairmen while engaged in discharging their dangerous duties. It appears to have been left to subordinates in the yard to establish such rules as they thought reasonable. And as the case stood on the first trial there was no pretense that there was any regulation prohibiting the brakemen or any one else from removing the flag. On both trials it appeared that the flag was put up by the proper person (Hickey) before the repairnen commenced work, and that some one took it down and laid it on the ground while Abel (the deceased) was at work under one of the cars. The engine was backed down against the cars on the cripple track and Abel was caught between the cars in attempting to escape. It does not distinctly appear by whom the flag was taken down. The jury would have been justified in finding that it was done by one of the brakemen engaged in switching the cars, since it appears that this was a common practice. It undoubtedly was a negligent act, and unless the negligence of the company in omitting to enact and promulgate proper rules, co-operated with that of the co-employe, the defendant is not responsible. "On the second trial, the testimony of Donnelly, the yardmaster, was greatly enlarged upon the point upon which the case turned. He supplemented his former testimony in important particulars, although on both trials the question of rules was the main question litigated. On his last examination he testified that he told his men they were not to interfere with the red flag unless told to take it down by the repairmen. He also testified that about half an hour before the accident he had directed his men to take cars from the cripple track and that after giving the order he went south along the cripple track. After he had given the order and observed the flag lying on the ground, and knowing that the repairmen were at work, he directed one of two repairmen (Grant or Wicks) to put the flag in its place again at the end of the north car. The man took up the flag and instead of putting it in its place, went toward the south end of the train with it, and he (Donnelly) took no further notice of the matter. The credibility of SICKELS-VOL. LXXXIII. 84 |