
    George E. Swanton, Appellant, v. Hastings Pavement Company, Respondent.
    Second Department,
    December 30, 1908.
    Negligence — injury to car inspector by obstruction on highway — contributory negligence — concurrent negligence of fellow-servant.
    Although an inspector who boarded a trolley car and stood on the running board could by looking some distance ahead have seen a concrete mixer used by the defendant in repairing the adjoining highway, by which machine he was afterwards struck and injured owing to its closeness to the track, he was not guilty of negligence as a matter of law, for he was not bound to anticipate such obstruction near the track and his duties required his attention to be directed elsewhere.
    Even if said injury was caused by the concurrent negligence of the defendant and that of the motorman, a fellow-servant, the defendant is liable nevertheless.
    Appeal by the plaintiff, George E. Swanton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 3d day of June, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Richmond Trial Term.
    
      Frederick F. Fishel [Francis F. Leman with him on the brief], for the appellant.
    
      George M. Pinney, Jr. [James B. Henney with him on the brief], for the respondent.
   Hooker, J.:

The plaintiff, an inspector in the employ of a trolley road, was riding on the running board on one of its open cars, and was hit and thrown therefrom by a projecting part of a concrete mixer, which was being used by the defendant in the repair of the highway. It seems to be undoubted that there was sufficient evidence to establish the negligence of the defendant. The nonsuit was granted on the ground that the plaintiff had not shown himself free from contributory negligence. Admitting that when he boarded the car he could have seen the mixer for a distance ahead, and, had he seen it, supposed that it was too near the track; and admitting that the mixer was in plain view from the time he boarded the caito the time he was thrown off the running board, yet he was not guilty of negligence on his part, as a matter of law, for the reasons: First, that he was under no legal obligation to look ahead before getting upon the car to anticipate possible obstructions in the track or near it; and, second, he had his duties to perform, which he was doing after he boarded the car; these duties required his attention elsewhere than to the track ahead, and he had a right to rely upon other users of the highway performing the duty they owed to the trolley company and to passengers upon its cars, not dangerously to obstruct their passage.

If the thing was caused by the negligence of both the defendant and the motorman, a fellow-employee of the plaintiff, the defendant would still be liable.

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

Jenks, Gaynor, Rich and Miller, JJ., concurred.

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