
    Mary A. Wheeler, as Administratrix, etc., of Wallace E. Wheeler, Deceased, Respondent, v. Sundstrom & Stratton Company, Appellant.
    Second Department,
    March 17, 1911.
    Negligence — death, caused by construction train — contributory negligence.
    There can he no recovery for the death of a civil engineer who while representing a railroad company on work under construction by an independent contractor and while standing on the track of a temporary railroad used by the defendant contractor to convey materials, was struck by a train while engaged in conversation with other persons, if there be no evidence whatever of any care on his part and the approaching train could have been seen for some distance.
    The question of contributory negligence should not be submitted to the jury unless there be evidence, direct or inferential, that the accident occurred without lack of due care on the part of the decedent.
    Although the decedent, employed by the railroad to supervise the contractor’s work, was not a trespasser or licensee while standing on the track, the contractor was not an insurer, nor was the decedent relieved from the obligation of due care.
    Thomas, J., dissented.
    Appeal by the defendant, the Sundstrom & Stratton Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the Yth day of May, 1910, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 18th day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Bright [Abram F. Servin with him on the brief], for the appellant.
    
      M. A. Kane [ William S. Armstrong with him on the brief], for the respondent.
   Jenks, P. J.:

This is a common-law action for negligence. The defendant was constructing a line of railway. The work embraced the use of a temporary single construction track parallel 30 feet from the railway. The construction track ran from an excavation about 900 feet south of a certain culvert then under construction across that culvert to a fill about 900 feet north of it. Two trains eacli of about twelve open ears carried the soil, loaded from the excavation by a steam shovel, along the construction track to the fill. The trains, pushed by a locomotive engine, alternated, passing one another by a siding south of the culvert that ended about 200 feet from it. The interval of time between trains as estimated by the superintendent and by the president of the defendant was from 15 to 20 minutes. These trains were working on the day of the accident. On that day the plaintiff’s intestate Wheeler, Lamb and Sundstrom were together at the work. They walked along the main track until compelled to leave it by an approaching freight train, then they crossed to the temporary construction track, and took their way along that track northerly to the culvert. They stopped close to the culvert and stood there in discussion and in examination of the culvert. As they stood facing to the north they were struck by a train running northerly from the excavation. Wheeler was killed and his companions were injured.

I think that we cannot sustain the judgment which Wheeler’s administrator has recovered against the defendant. I can find no evidence, direct or inferential, that he or his companions took any care to avoid this accident. Wheeler was the resident civil engineer who represented the railroad company in that construction, and the work was under his daily observation. He must have understood the work and the details thereof. He must have known the peril of standing upon this construction track with his back to a direction in which one of these trains must travel. Lamb was the superintendent and Sundstrom was the president of the defendant. And they too were perfectly familiar with the work and with its methods.

. The record is bare of any proof that shows or permits the inference that Wheeler or his companions at any time when they went onto the construction track, or while they walked upon it, or while they stood near the culvert at gaze, ever looked or listened or sought any safeguard against an oncoming train. Lamb was a witness for the plaintiff, but his testimony is that they were so engrossed in an animated discussion that they stood upon and near this construction track, “ with our backs to the oncoming train, forgetting all about' it.” Sundstrom was a witness for the defendant, and his testimony fails to show that any precautions whatever were taken by Wheeler or by Lamb or by himself. Indeed, the record is not only negative of any care, but is affirmative of the lack of any care. There is sufficient proof that the oncoming train could have been seen from the viewpoint at the culvert. Lamb testifies that they could have seen a train as far distant as the steam shovel, over 900 feet, and he is confirmed in this statement by Sundstrom. Two hundred feet is the shortest distance estimated of the view, and that is the judgment of but one witness. These men were not in a situation where escape from the train was physically impossible, as if they had been far out on some high trestle work. Indeed, Lamb testifies that if he had heard the construction train he “ wouldn’t have got struck.” While there is no proof of' the rate of speed of the train, naturally it could not have been high. Possibly these men relied almost unconsciously upon the usual noise of a train as a warning, and yet possibly that noise could not he heard because of the passing of the freight train on the main track. If this were so, then they should have looked. Possibly they were so absorbed in a discussion which the evidence shows was animated and acute as to be oblivious of the peril of their place, so that their intei-est in the work, coupled with that familiarity therewith that so often relaxes vigilance, was their undoing. Possibly they relied wholly upon the conduct of any train that might approach them, but they had no legal right so to do. (Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y. 526.) But whatever the explanation may account for such careless conduct, there is none in this record that excuses it. The question of the intestate’s conduct was not for the jury unless there was evidence, direct or inferential, that the accident occurred without the lack of due care on his part. (Tolman v. Syracuse, Binghamton & N. Y. R. R. Co., 98 N. Y. 198; Republic Iron dé Steel Co. v. Tobin, 164 Fed. Rep. 38.) Although oral admissions may well be termed the weakest evidence, the uncontradicted testimony in this case gives credence to the testimony of Gleason (the engineer of the steam shovel, who went to the scene after the accident) that Wheeler, who was conscious and whose mind seemed clear, said : “It was pretty tough to be cut up that way, he didn’t never expect to get it that way; * * * it was his own fault and nobody else to blame.”

The learned counsel for the plaintiff lays stress upon the fact that Wheeler was rightfully at the point where he was run down. His work may have called him to that place. If so, then he was neither trespasser nor licensee, and the nature of the defendant’s obligation was different. But it was not that of an insurer, and Wheeler was not relieved from his obligation of due care.

Without consideration of the defendant’s conduct I advise that a new trial be granted, costs to abide the event.

Burr, Carr and Rich, JJ., concurred; Thomas, J., dissented.

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