Opinion
November 18, 1916.
Robert Thorne, for the appellant.
Sydney A. Syme, for the respondent.
Present — THOMAS, CARR, STAPLETON, RICH and PUTNAM, JJ.
The equipment of this warning telltale and especially the question whether it left sufficient interval for men on fast trains to get down so as to pass under this abnormally low bridge, were questions for the jury, as this court has already held in this case, following Wallace v. C.V.R.R. Co. ( 138 N.Y. 302).
From the rails up to the plate attached to the undersurface of this bridge opening was sixteen feet six and a half inches, leaving for an ordinary freight car a clearance of from twenty-four to thirty inches. The tender, on which deceased's lamp was picked up, measured eleven feet six and a half inches high to its top edge. It did not appear how much at this time the coal rose above the tender. It stands uncontradicted that to go clear under this bridge a person on top of these freight cars has to lie down.
Plaintiff's recovery must depend on sustaining the finding that defendant furnished defective equipment, in that this telltale was too near this bridge to give due warning, in view of the speed of the train and the necessary changes of position of one on top of the cars so as to get wholly beneath the bridge. The admitted speed of twenty-five miles is nearly at the rate of thirty-seven feet a second, giving seven seconds to drop down and lie flat to clear this bridge safely. And these movements, on the running board of a box car within a thirty-inch vertical space above the car, at night, must be made on a train in quick motion, where one of the brakeman's hands have to keep hold of his lantern. Hence the factors of speed, sufficiency of warnings by the telltale, with the extent of the changes of position so as to drop down into a posture to pass under the bridge, were all questions of fact. The jury were not bound to adopt and follow the methods of locating telltales upon other railroads. Obviously such a warning should hang far enough in advance of the peril to enable the brakeman to get in time into a safe position. Defendant's counsel made no claim of contributory negligence.
Defendant's witnesses generally stated that on two other railway systems besides that of this defendant, also on other lines with which they were acquainted, such telltales were placed at distances away from the bridges of from 200 to 300 feet. This, however, was not a matter of exact measurement. Mr. Hand, a division engineer of the Delaware, Lackawanna and Western Railroad Company, admitted that his road had no bridges in New Jersey whose clearances were lower than three feet. It was not shown that the conditions of this bridge, spanning main lines on which are through fast trains, were duplicated in the other systems mentioned. Such testimony from experts showing the practice of other railroad systems in guarding their employees from danger, though entitled to proper consideration, is not conclusive or controlling. Otherwise incorporated employers, by their general custom or habit of acting, could create a rule of law for their own exemption. There is nothing technical, obscure or involved as to the warning purpose, and, therefore, as to the safe interval which should be placed between such telltales and a dangerous overhead obstruction. (See Boston Maine R.R. Co. v. Brown, 218 Fed. Rep. 625.) Hence, although this testimony as to usage of other railroads was not contradicted, the jury were not bound to find this distance of 247 feet a safe one. ( Shannahan v. Empire Engineering Corp., 204 N.Y. 543; Evans v. Pearson Son, Inc., 125 App. Div. 666; 194 N.Y. 569; Schutz v. Union Railway Co., 181 id. 33, 38.)
As defendant asked that a verdict be directed, in which motion plaintiff's counsel joined, the learned trial court was authorized to direct a verdict for $8,000, especially when defendant made no request to go to the jury on the amount of damages, but contented itself with an exception to the verdict. ( Clancy v. New York, New Haven Hartford R.R. Co., 133 App. Div. 119; reversed on other grounds, 201 N.Y. 235.) As no question was made as to excessive damages, defendant's motion for a new trial was rightly denied.
The judgment and order should, therefore, be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.