
    (74 Hun, 115.)
    CONLAN v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    1. Fellow Servants—Volunteers.
    After several ineffectual efforts by defendant’s trainmen to switch cars to the proper point for unloading at the elevator of a third person, plaintiff, an employe of such third person, whose duty was to receive and unload cars, offered to place them himself, and while so engaged was injured by the negligence of the trainmen. Held, that the plaintiff did not thereby become the fellow servant of the man in charge of the train.
    S. Negligence—Authority to be on Premises.
    In such case, plaintiff was not on the track merely by license of defendant, it being his duty to place the cars at the proper place for unloading them. Nicholson v. Railroad Co., 41 N. Y. 525, distinguished.
    8. Same—Contributory Negligence.
    Plaintiff having notified the trainmen of his intention to place the cars "' where he wanted them, it was a question for the jury whether, under the circumstances, he was bound to watch the train backing up against the cars where he was at work.
    4. Same—Instructions.
    In an action for injuries received by plaintiff while placing cars on a side track, an instruction “that if the plaintiff could have put himself in such a position where, by looking, he could have seen these cars coming, and he did not put himself in such a position, and did not look, that it was negligence on his part,” was properly refused, because it omitted the qualification that he could have so placed himself “while doing the work.”1
    5. Same—Acts ov Agent.
    In an action against a railroad company for injuries caused by running a car against plaintiff while at work on a side track, there was evidence that the train which caused the injury was at the time in charge of a brakeman, who was acting as conductor, and that under defendant’s rules a brakeman could take charge of a train in certain cases. Held, that it was not error to give a charge predicated on the hypothesis that the brakeman was representing defendant at the time.
    Appeal from circuit court, Ulster county.
    Action by Thomas J. Conlan against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict for $623.44 damages and costs in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the judge, plaintiff appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Ashbel Green, (F. L. Westbrook, of counsel,) for appellant.
    G. D. B. Hasbrouck, for respondent.
   PUTNAM, J.

It is claimed by appellant that plaintiff, having-directed the brakeman in charge of defendant’s train to uncouple the cars, and offered to place them himself where he (plaintiff) wanted them, should be deemed a fellow servant of- the brakeman;. and as assuming the risks incident to- the business, including that of the negligence of his fellow servant or brakeman. Plaintiff, volunteering to do the work of the employe of- defendant, should not impose on it a greater liability than that for which it was liable to-its own servant, and hence it was not liable for the negligence of the brakeman, if any. We think this position, is not well takén. Plaintiff, at the time he -was injured, was a servant in. the employ of Everett & Treadwell. Defendant switched two cars down to the scales. After two or three attempts- it failed to place the cars on the scales, and plaintiff then, as the agent of Everett & Treadwell, received the cars from defendant on the track near the scales, and offered to place them there himself. In the transaction he acted merely for Everett & Treadwell, voluntarily receiving the cars for that firm near the scales instead of on them. Acting for Everett & Treadwell, he relieved the company from doing1 what he might have required them to do. Iff spotting two cars he was not acting for defendant, but for his employers; hence he did not occupy the same position as a fellow servant. Had he not been in the employ of Everett & Treadwell, and voluntarily offered1 to aid the servants of the defendant in discharging their duties,, the case might have been otherwise. Then, perhaps, he would have-occupied the position of a servant of defendant doing the work without compensation. Such was the case of Degg v. Railway Co., 40 Eng. Law & Eq. 376, and other cases cited by the learned counsel: for appellant on this point. We think the evidence in the case was such as to present a question of fact as to whether or not the injury to plaintiff was caused by defendant’s negligence, which. Was-properly submitted to the jury by the learned trial judge. The-plaintiff was rightfully where he was injured, as an employe of Everett & Treadwell. He testifies:

“It was my business to place that car where I wanted it. It was my business to unload these cars, and to pinch the cars, to accommodate myself, to the elevator. I had to get it directly in -front of this elevator. Q. Then, your occupation required your presence on the rails? A. Yes, sir.”

The switch through which the cars were run to the place of the-accident was placed for Ms employers in order to transport cars opposite their place of business. The cars were left near the scales by defendant’s servants, in charge of plaintiff, at the place selected-by defendant for -unloading them. Plaintiff was not at this place-merely by license of defendant, as in the case of Nicholson v. Railroad Co., 41 N. Y. 525, but was rightfully there, and doing a lawful act. If he had been there, however, merely by license of defendant, it was liable if it injured him by a careless or heedless act. Nicholson v. Railroad Co., 41 N. Y. 532, 533. Hence the jury were justified, from the evidence, in finding that the plaintiff received the two cars from defendant’s servant,—the brakeman, who appeared to have charge of the train,—and was lawfully engaged in moving the same, having told the brakeman he would do so; and while plaintiff was so engaged, and a very brief period after he commenced the moving, defendant backed its cars down upon him without any signal or warning of any kind. We think the case, therefore, as to defendant’s negligence, was one properly submitted to the jury. The defendant was bound to exercise proper care in the management of its cars, so as not to injure the plaintiff. Young v. Railroad Co., 13 Daly, 294,103 N. Y. 678.

The question as to plaintiff’s contributory negligence was also properly left to the jury. All the circumstances relating to the accident were proved, and raised a question of fact. We cannot determine, as a legal conclusion, that plaintiff, under the circumstances, was bound to watch for trains backing up against the cars where he was at work, or that it was negligence not to anticipate the approach of the train which injured him, he having notified defendant’s servant of his intention to spot the two cars. See Newson v. Railroad Co., 29 N. Y. 383; Feeney v. Railroad Co., 116 N. Y. 375-379, 22 N. E. 402. Where the facts are all before the jury, it is only in unusual cases that the question of contributory negligence can be taken from them. Massoth v. Canal Co., 64 N. Y. 529. There was testimony in the case from which the jury might have concluded that the plaintiff did not exercise proper care at the time of the accident, but such evidence was not so conclusive as to justify the trial court in passing on the question as one of law.

We think the court below properly instructed the jury on the question of contributory negligence. The request of defendant to the court to charge the jury “that if the plaintiff could have put himself in such a position where, by looking, he could have seen these cars coming, and he did not put himself in such a position, and did not look, that it was negligence upon his part,” was properly refused. If the court had been asked to instruct the jury that if plaintiff, where he was at work, by looking could have seen the ears coming, and did not look, or while doing the work could so have placed himself as to have seen the cars approaching, and did not do so, it possibly might have been the duty of the court so to charge. The cases cited by appellant upon this point are those where accidents occurred to travelers crossing railroad tracks, and hence are not applicable to this case.

We think the trial judge correctly instructed the jury when requested to charge that the defendant was not required to ring a bell, and not ringing a bell was not negligence on its part. The judge remarked:

• “I leave it to the jury to say whether, under the circumstances as proven, here, the brakeman did his duty in permitting his train to come in without giving the plaintiff any notice, either by ringing the bell, blowing a "whistle, or any other signal which might have attracted his attention. I do not charge that it was their duty to ring a bell or blow a whistle. * * * It is for the jury to say whether proper notice was given, and, if they find notice ought to have been given him under the circumstances, they may take into consideration the fact that the bell was not rung, or other signal given.”"

It was a question of fact whether the defendant was negligent-It was proper to show all the facts,—that the hell was not rung, or the whistle blown, or any other signal given. These facts bear on the question of defendant’s negligence.

We also think the court did not err in that portion of his charge wherein he referred to the brakeman.- Among other things, he said:

“If you find that he did fail in the discharge of his duty to the plaintiff, and he represented the defendant, so -far as the defendant is concerned in this action, his negligence is negligence upon the part of the defendant.”

The testimony in the case was such that the jury were authorized to find that the brakeman, at the time in question, was in-fact acting as the conductor of the train that injured the plaintiff, —at least, that he was in charge of the train. Under defendant’s rules, as sworn to by Wattson, he could have charge of such a train.. Wattson says:

“The conductor instructs the brakeman that they are going to put a car on: a certain siding, and the brakeman or the conductor gives the engineer a certain signal to move ahead or move backward, as the case may be, and in answer to that signal the engineer moves his engine, and switches the car. In answer to either the signal from the brakeman or the conductor, the brakeman, when a train is operated, may be either on the top of the car, or he may be on the ground."

That the brakeman was in the apparent charge of the train was shown by the evidence. Therefore, the remarks of the trial judge,, tó which the appellant takes exception, were justified. If the brakeman uncoupled the cars, and. moved the train back to the-switch, and backed it up so as to injure the plaintiff, he represented the defendant, and it is liable for his negligence. We conclude that no error was committed upon the trial, and that the judgment should be affirmed, with costs. All concur.  