
    Sidonie L. Buckley, as Administratrix, etc., of Henry A. Buckley, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    December 30, 1910.
    Railroad — negligence — death, of locomotive engineer while walking on track—facts not justifying recovery.
    The plaintiff’s intestate, a locomotive engineer, while going to his engine, which was scheduled to leave in a short time and knowing that another engine on a parallel track would leave a few minutes before his own, walked on the track of the latter engine. • This engine was started after the customary warnings and while running at the rate of from six to eight miles an hour struck and killed the intestate as he was attempting to. leave the track.
    
      Held, that the plaintiff was not entitled to recover; that no negligence could be predicated on the failure of the engineer to see the intestate, and that if he had seen, him, he would have had the right to assume that he would leave the track in time to avoid the engine;
    That as the intestate was neither authorized, nor directed, nor required by necessity to use the track in going to his own engine, he was at the most a mere licensee and the defendant was under no greater duty than to refrain from-intentional wronger injury;
    That as the intestate was thoroughly familiar with the situation he was guilty of contributory negligence in walking upon the track.
    
      9
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office" of the clerk of the county of Westchester on the 28th day of February, 1910, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the l4th day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. Brennan, for the appellant.
    
      Don R. Almy [Arthur J. Levine and John M. Wellbrock with him on the brief], for the respondent.
   Jenks, J.:

This action for negligence is brought by the administrator of a servant against master. The accident happened near a railway station of the defendant whereat it was accustomed to substitute locomotive electric engines for locomotive steam engines in the traction of some of its regular trains. The electric engines meanwhile stood upon a switch track, and after a steam engine of a train was shunted to a turntable an electric engine was taken out and coupled with the train. The electric engines were ranged on their switch track in the order of their respective outgoings. The intestate— an engineer — on this day, as on the 8 or 10 days immediately before, was assigned to take out the second engine. The scheduled difference between the outgoings of the first and the second engine was six or seven minutes. It was daylight. The intestate had been waiting at the station in conversation with Biehls and Hayden, two other engineers. He left them to start in the direction of his engine at the time when the first engine must go out. After walking for a few feet, and when about 69 feet from the first engine, to go out, he took his way between the rails whereon these engines were accustomed to stand, and continued in that way at an ordinary pace for about 59 feet. As the first engine stárted, Biehls and Hayden, seeing the peril, cried out to the intestate, who thereupon made an attempt to leave the track but was struck by the engine.

The plaintiff .complains that the persons in charge of the engine did not.see the intestate. But that failure was not negligence, unless some act -of omission or commission that was negligence as to the intestate resulted-from it. The evidence is that the engine was started slowly upon the usual signal; that as it started its bell was rung — the customary and usual warning — and that it was running at the rate of from 6 to 8 miles an hour. If those in charge of the engine had seen the intestate thus walking at an ordinary pace within the rails they had the right, at least in the first instance, to act upon the assumption that he would leave the space between the rails and not continue his walk therein to collision. (Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164.) There was nothing in the situation, even if they had seen the intestate, that required them in the exercise of due care to act otherwise. Indeed, the-intestate attempted to act as they had the right to assume he would act, namely, to stand aside.

It appears that the intestate could have either found his way outside of the tracks or have gained a space wherein he could have stood clear of a passing engine. It appeal's that the engineer of the first engine was accustomed to use á narrow way outside of the rails, and there is proof that there was a space of safety where the intestate could have stood, although a narrow one. It does not appear that the intestate had "ever thus walked within the rails to gain his engine, or that it was necessary for him even' to walk upon the tracks' at all in time to reach his engine until the first engine had passed out. Indeed it would seem that the intestate ordinarily had 6 or 7 minutes after the first engine went out within which he could pass over the comparatively few-feet required to reach his own engine. There is no proof that he or any other employee in similar situation was ever directed or even authorized to use such a way under similar circumstances.

I think that the plaintiff would hold the defendant to an obligation beyond that authorized by law. If the intestate was neither authorized, directed or required necessarily in the discharge of the duties imposed upon him to use this way at this time and under the surrounding circumstances, he-was at most a mere licensee. ' The license c created no, legal right, and imposed no duty upon the defendant except the general duty which every man owes to. others, to do them no intentional wrong or injury.’” (Winn v. N. Y. C. & H. R. R. R. Co., 65 App, Div. 572, citing authorities.)

Moreover, I fail to find proof of the absence of contributory negligence. The intestate was thoroughly familiar with the system

when he started on his way. It was the same regularly observed and one in which he had taken part for the 8 or 10 days just previous to the day of the accident. He must have known that the oncoming of the first engine was imminent. There is no reason suggested why he could not foresee the immediate peril. For aught that appears, he was qualified by his knowledge and his faculties to perceive it and to realize it. He sought to avoid it, so that it perhaps might seem that with the familiarity of employment which often induces carelessness, the accident was due-as much to a miscalculation as to inattention. He stepped aside too late to clear the engine. But he was not justified in throwing caution to the winds in sole reliance upon those in charge of the engine, for they had the right to assume that he as well as they would act with reasonable care. I think that aside from all other grounds the absence of proof of due care on the part of the intestate requires a reversal of the judgment and the ordering of a new trial. (See Barstow v. Old Colony Railroad, 143 Mass. 535 ; Galvin v. Old Colony Railroad, 162 id. 533; Clark v. New York, Lake Eric & Western Railroad Co., 80 Hun, 320 ; Dyer v. Fitchburg R. R. Co., 170 Mass. 148 ; Pennsylvania Co. v. O’Shaughnessy, 122 Ind. 588; Illinois Cent. R. R. Co. v. Curran, 94 111. App. 182-; Sours v. Great Northern R. Co., 84 Minn. 230.)

The judgment and order must be reversed and a new trial must be granted, costs to abide the event.

Hirschberg, P. J., Woodward, Rich and Carr, JJ., concurred.

• Judgment and order reversed and new trial granted, costs to. abide the event.  