Patterson Simpson, Appellant, v. The Central Vermont Railroad Company, Respondent.
Negligence — a master 'must furnish a supply and make a repair — effect of the employee injured and the employee causing the injury both disregarding the rules.
To replace an old wick by a new one in tlie headlight of a locomotive is a supply ancl not a repair, and the only duty of the railroad company in the premises is to provide a sufficient supply of wicks.
An employee of a railroad company, who has himself disregarded its rules, can not recover damages against the company for an injury resulting from a disre gard of the company’s rules by another employee to which injury his own disregard of the rules "contributed.
*615Appeal by the plaintiff, Patterson Simpson, from a judgment of tbe Supreme Court in favor of tlie defendant entered in the office of the clerk of the county of St. Lawrence on the 25th day of May, 1895, upon a nonsuit granted by the court after a trial before the court and a jury at the St. Lawrence Circuit at the close of the plaintiff’s evidence.
The action is to recover on account of injuries which the plaintiff, a fireman upon a locomotive engine of the defendant, received in jumping from the engine as it was about to collide with another engine. The engine (No. 89) upon which the plaintiff was employed was hauling a freight train running “ wild,” that is, on telegraph orders and not on schedule time, and was approaching from the west, after eleven o’clock at night, the station at Norwood upon the main track of the Ogdensburg and Lake Champlain railroad, operated by the defendant, when the plaintiff saw, about 100 feet in front of his engine, another engine standing upon the main track. The latter engine (No. 76) was in fact standing still, but the plaintiff thought it was moving towards him, and, in his sudden fright, jumped from his engine, and one of his legs was crushed beneath the wheels. Engine No. 76 was facing the approaching train; the light in its head lamp — a reflector — had gone out and a'lantern had been placed in the head lamp; this gave a much feebler light than that of the usual headlight. The light went out in the head lamp of engine No. 76 because the wick was too short. Wicks and other lamp supplies were kept at the round house in Malone, whence engine No. 76 left the same evening, hauling a freight train running wild. The headlight had gone out on the same engine the night before on its way from Malone to Ogdensburg, and a lantern was placed m the reflector. By the rules it ivas the duty of the engineer to see that his engine was in order, including the head lamp. Another engineer and fireman took engine No. 76 back to Malone from Ogdensburg the next morning before daylight; the lamp burned until daylight. The same engineer and fireman were in charge of engine No. 76 when the collision occurred. It was not the plaintiff’s duty to inspect the lamp and procure a new wick unless ordered to do so. Engine No. 76 had received an order at Norwood to meet engine No. 89 (the plaintiff’s engine) there and then run wild to Ogdensburg. It was then its duty to take the side track, the rule pro vid*616ing that “ west-bound trains of the same class will take the side track at meeting points, except in cases where it is impracticable.” The engineer of No. 76 was about to back easterly to take the side track, when the train drawn by No. 89 came up and the collision occurred. The rules provided: “ The speed of all second-class, mixed and wild trains must be reduced not to exceed four miles per hour, and all trains must be under full control beyond the yard limit signs east and west of the Norwood yard.” “Engineers approaching stations will bring their trains under full control before passing the first switch. When moving about the stations the bell must be rung and all proper caution used.” The first switch above referred to, to the west, is three-quarters of a mile distant from the station. The plaintiff testified that his train was running about four miles an hour. The engineer testified that he was running about seven miles an hour and was about 200 feet from it when he saw engine No. 76 ; he instantly rang for brakes, but could not stop in time.
C. A. Kellogg, for the appellant.
Louis Hasbrouck, for the respondent.
Landon, J.:
The plaintiff insists that he had the right to go to the jury upon the question whether the defendant was negligent in sending out engine No. 76 improperly equipped as to its headlight. The defect was that the wick was too short. A supply of new wicks was kept by the defendant at Malone, from which station engine No. 76 was dispatched westward to Ogdensburg, stopping at Norwood. A new wick to replace an old one is a supply and not a repair, and by the defendant's rules the engineer of engine No. 76 should have seen that the supplies which the defendant had provided and placed within his command were ample for. the trip. To provide these supplies for use was the master’s duty; to take them as they were needed for use was the servant’s duty. (Cregan v. Marston, 126 N. Y. 568; Harley v. Buffalo Car Mfg. Co., 142 id. 31; Kaare v. Troy Steel & Iron Co., 139 id. 369; McDonald v. N. Y. Central & H. R. R. R. Co., 63 Hun, 587.) This request was properly refused.
*617The plaintiff also insists that he had the right to go to the jury upon the question whether the defendant was not negligent in failing to promulgate sufficient rules for the meeting of wild trains at night. The difficulty does not appear to be with the rules, but in the failure of the defendant’s servants to obey them upon this occasion. Engine No. 16 should have taken the side track after receiving-notice that it was to pass No. 89 at Norwood. The engineer or conductor of engine No. 16 ivas too slow about it. Engine No. 89 ought to have been under the control specified by the rules from the first switch eastward. If the engineer had had it under such control he could have stopped it in seventy feet. It may well be that he relaxed his observance of the rule because ho did not see the light in the head lamp of No. 16, or mistook it when he first saw it for a station light or some other, but such relaxation was none the less a violation of the rule.
Plaintiff’s counsel contends that the defendant might have made further rules, and he suggests one, namely, that all engines and trains should be kept off the main line while detained at stations awaiting orders.
So long as the rules which are promulgated will, if observed, secure safety, it is wiser to leave the making of new rules to the company.
The judgment is affirmed, with costs.
All concurred.
Judgment affirmed, with costs