
    KATIE COLLINS, as Administratrix, etc., Respondent, v. THE NEW YORK, NEW HAVEN & HARTFORD R. R. CO., Appellant.
    
      Contributory negligence-, general rules as to exercise of care and prudence, especially as to duty of looking out, how affected by peculiar circumstances —One on premises of another doing work for him is not a■ mere licensee —Requests to charge based on erroneous assumptions, and requests as to matters upon the doing or not doing of which defendant's liability is not made to rest, are properly refused.
    
    Plaintiff’s intestate was an employee of one who had contracted with defendant to lay certain water pipes in its yard. In this yard there were many tracks parallel, converging and crossing, on which trains were made up and broken up by the use of engines. At the time of the accident the intestate had been working there about two weeks. Just before the accident he was at work spreading earth which was thrown from a trench crossed by a track and which extended towards another track. lie had stopped work and was standing between the two tracks. The distance between these tracks was nine feet, seven inches; a jiassenger car would overhang the track two feet, three inches, and a freight car one foot, six inches. A p'assenger train on one of these tracks was approaching from a distance of about one hundred and twenty-five feet when McCaffrey, a servant of defendant, who had switched so that a freight car would run on the other, noticed, before the freight car began to run, that the passenger train was in motion, and immediately warned the intestate against that train. At this point the freight car came over its track, but McCaffrey did not notice it until it had got within two or three feet of the intestate, who in the meantime had moved away from the passenger towards the freight track. It was then too late to warn the intestate against the freight train, and consequently McCaffrey did not do so. The outside of the freight car struck the intestate on the shoulder and inflicted the injury from which he subsequently died. The passenger car had not come up and passed him. McCaffrey saw that the intestate looked over his shoulder in the direction of the freight train and tried to get out of the way, but it was then too late. Defendants’ counsel argued in the court below that the intestate was in safety between the two tracks, and that common prudence required him to remain there, or if he moved away he was bound to look on the freight track for any approaching car.
    
      
      Held, (1.) The extent to which the mind of a man of ordinary prudence might be affected by the situation above detailed, and by the specific direction of defendant’s servants as to the passenger train, was a question for the jury; and that it was properly left to them to determine whether the intestate was negligent. (2.) That the court properly refused to charge that it was the duty of deceased to have looked for a car on the freight track. (3.) That the intestate was not. a licensee, and that requests to charge based on that assumption were properly refused. (4.) That requests to charge that defendant was not bound to do certain things, were properly refused, as under the charge as given, the liability of defendant was not made to rest on the doing of those things, but on defendant’s want of care in running the car on the intestate, under the circumstances.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided June 23, 1887.
    Appeal by defendant, from judgment entered upon verdict for plaintiff, and from order denying motion for new trial.
    The facts sufficiently appear in the opinion.
    
      W. E. Barnett, attorney, and Frank Loomis, of counsel for appellant, argued:
    I. The suggestion that decedent’s mind was confused because he was aware of a peril on either hand, is misleading and unfounded in the evidence. It is clear that he forgot and did not consider in his mind the presence of the freight track or any danger from that direction until it was too late. It was his duty to have looked on and along the freight track, and the exercise of his faculty of seeing would have prevented the accident. Wilcox v. Rome & Watertown R. R. Co., 39 N. Y. 361; Beisegel v. N. Y. C. & H. R. R. R. Co.. 40 Ib. 9; Havens v. Erie Ry. Co., 41 Ib. 296; Harty v. Central R. R. of N. J., 42 Ib. 468; McGrath v. N. Y. C. & H. R. R. R. Co., 59 Ib. 468; Salter v. Utica & B. R. R. R. Co., 75 
      Ib. 273; Connely v. N. Y. C. & H. R. R. R. Co., 88 Ib. 346; Tolman v. S. B. & N. Y. R. R. Co., 98 Ib. 198.
    II. The court declined to charge each of the following requests of the defendants:
    “ That the license to the deceased to move in and about this yard cannot be construed as restricting the defendants in the use of their tracks in the prosecution of their business.”
    
      u That the deceased, acting under the license, took the risks incident to the defendant’s business, and of the danger to which he might be exposed from the management of the yard and cars in the usual and ordinary way.”
    “ That the defendants owed the deceased no duty to guard him from accidents.”
    
      “ That the defendants owed the deceased no duty of active vigilance.”
    “ That the bralceman Gagin not having seen the deceased before he was injured, no special precaution was required of him in the absence of any indication of danger to the deceased.”
    “ That as to this accident the defendants did no affirmative act at the time by which existing conditions were changed and new perils created.”
    
      “ That the defendants are not liable because of defects, if any, in their system of doing business.”
    
      a That the defendants were under no obligation to station a man at or near the place where the accident happened, for the purpose of warning the deceased against approaching trains of cars.”
    Each one of these propositions is sanctioned by the decision in Sutton v. N. Y. C. & II. R. R. R. Co., 66 N. Y. 243s
    The charge as made coupled with the refusals to charge as requested, authorized the jury to find that the defendants’ usual and ordinary method of doing business was wanting in proper provision for the safety of Collins and his fellow workmen, and that by the failure to use any of a hundred different methods by which the system would have, in the opinion of the jury, been brought up to the standard of ordinary care, the defendants were negligent. This doctrine as applied to this case was erroneous. Sutton v. N. Y. C. & H. R. R. R. Co., supra.
    
    III. A deaf man may be about to cross a railroad of two tracks, and, looking at a train going in one direction, omit to look at all in the other direction, and so know nothing of the approach of a train from such other direction. A man standing—say between the roadways of the N. Y. City & Northern and N. Y. C. & H. R. Railroad just north of High Bridge—may look at and have his mind wholly occupied with looking at a train on one of the railroads, and at the same time walk backwards to and on to the track of the other railroad and be hit by a “ train of which he knew nothing, but which was coming from another direction.” It is not for a . jury to say how much prudence a man should have used under such circumstances, or that he used any. The . law has fixed the quality of the act.
    IV. Collins was not paying any attention except to the passenger train. He was and could not have been in any state of uncertainty or confusion as to wha.t he should do as between two perils.
    
      Ashbel P. Fitch, attorney, and Henry H. Spelman, of counsel for respondent, argued:
    I. It was clearly the province of the jury to say whether under the circumstances the defendant and its servants were negligent, and whether or not the deceased was guilty of contributory negligence, he as it appeared being between two dangers. Courts will not nonsuit where any inference can be drawn from any of the testimony which would relieve from the charge of contributory negligence. Stackus v. N. Y. C. & H. R. R. Co., 79 N. Y. 464; Casey v. Same, 78 Ib. 518. When a person is between two dangers and is obliged to choose between them, a mistake of judgment is not contributory negligence, and if plaintiff acted on a sudden emergency he should not be held to a rigid accountability for his actions. In such case the question is for the jury. Filer v. N. Y. Central R. R. Co., 49 N. Y. 47; Coulter v. Am. Mer. Union Ex. Co., 56 Ib. 585; Salter v. Utica & Black Riv. R. R. Co., 88 Ib. 42; Bucher v. N. Y. C., &c. R. R. Co., 98 Ib. 132 ; Twomley v. C. P. N. & E. R. R. R. Co., 69 Ib. 158. The ride that, as a matter of law, it is negligence in a 'traveler about to cross a railroad track not to look both ways for approaching trains, does not apply to a workman whose employment requires him to remain upon or about the track, but whether he was negligent in a particular case is a question for the jury. Barton v. N. Y. Cent., &c. R. R. Co. 1 Sup. Ct. (T. & C.), 297; affirmed 56 N. Y. 660: Ominger v. N. Y. Cent. & H. R. R. Co., 4 Hun, 159 ; cited and approved in Roll v. Northern Central R. Co., 15 Hun, 503 ; affirmed 80 N. Y. 647; Goodfellow v. B. H. & E. R. R. Co., 106 Mass. 461. The question of defendant’s negligence was for the jury. Bills v. N. Y. Central R. R. Co., 84 N. Y. 5; Fairfax v. N. Y. Central &c., R. R. Co. 40 Super. Ct. 128. Even if there was sufficient evidence at close of plaintiff’s case, if it was supplied afterwards, and enough to go to the jury was subsequently adduced, on appeal the whole evidence in the case will be considered to determine whether there is enough to sustain the verdict. Leslie v. Knickerbocker Ins. Co., 63 N. Y. 27. The Court properly refused to direct a verdict. Smith v. Coe, 55 N. Y. 678.
    II. Those portions of the charge excepted to by defendant were correct in law. It was for the jury to say under the circumstances proved how much prudence the deceased should have exercised. The portion of the charge “ that no man is called upon to exercise the same degree of prudence nor is he held to such strict liability when placed between two dangers,” is sustained by Twomley v. C. P. N. & E. R. R. R. Co., and other cases cited supra. The other proposition excepted to is correct under Bennett v. Louisville &c. R. R. Co., 102 U. S. 577; Barton v. N. Y. Central &c. R. R. Co., supra; Ominger v. Same, supra. Besides, the exception was too general. Part of the proposition excepted to was identical with the defendant’s own request to charge, and the court on appeal will not divide the proposition excepted to, into parts. The exception must be taken as applying to the whole proposition. To render the request effectual it must point out the precise point intended. Schile v. Brokhahus, 80 N. Y. 614; Hamilton v. Eno, 81 Ib. 116.
    III. The requests to charge were properly denied, as the propositions involved in such requests were already sufficiently covered in the charge as made, and to repeat them in the same or different phraseology was unnecessary. Barber v. Marble, 2 Sup. Ct. (T. & C.), 114; Kissenger v. N. Y. & Harlem R. R. Co., 56 N. Y. 538; Doyle v. Scharpe, 74 Ib. 159, 160.
   By the Court.—Sedgwick, Ch., J.

The action was under the statute for damages for causing the death of plaintiff’s intestate by negligence.

The intestate had been employed to work in the yard of the defendant, by one who had contracted with the defendant to lay water-pipe in the yard. The intestate was working under that employment at the time he was killed. There were many tracks in the yard, parallel, converging and crossing, on which trains were made up and broken up, with the use • of locomotive engines. The intestate had been working there about one week. At the time of the accident two of his fellows had been digging a trench. A track, on which the freight car that struck the intestate ran, crossed the trench. Part of the trench was between this track and another track on which a passenger train ran. Just before the accident the intestate was between the two tracks, spreading about dirt which was thrown from the trench. He had stopped his work and the place where he stood, within a short time before he was struck, was indefinitely described by the witness, but the distance between the tracks was about nine feet seven inches. Cars running upon the tracks would overhang them, in the case of a passenger car two feet three inches, and in the case of a freight car one foot and six inches. A passenger train was moving on the one track easterly at a distance of 125 feet from . where Collins, the intestate, stood. One McCaffery, a servant of defendants, had at this time switched a track, on which the freight car afterwards ran, so that it might run upon it. The freight car did not run upon the track immediately after the switching. Before it ran McCaffery noticed the passenger train in motion and called out to Collins, as the jury might have found, to be on his guard against the passenger train.' At this point the freight car came over its track westerly, but McCaffery did not notice its. coming until it was within two or three feet from Collins,-who from the time his attention was called to the passenger train by McCaffery, had moved away from the passenger track and towards the freight track. McCaffery saw that he was in danger from the freight car only when Collins was so near the line that the outside of the freight car would take, that the accident was unavoidable. McCaffery therefore did not say anything to Collins, and Collins was struck upon the shoulder by the freight car, and the injury he received caused his death. McCaffery saw that Collins looked in the direction of the coming freight car, over his shoulder, and tried to get out of the way, but when it was too late. The testimony would have justified the jury in finding against McCaffery’s testimony on this point, that Collins was not at any time upon the freight track, and was struck by the overhanging part of the car.

It is maintained, in the first place, by the learned counsel for appellant, that Collins was in safety between the two tracks; that common prudence required him to remain there ; and that if he moved away, as he did, from the place of safety, he was bound to look upon the freight track for any approaching car. At the time Collins was struck the passenger car had not come up and passed him. The general rules on that subject laid down, to be applied to circumstances generally existing, are not to be considered apart from the peculiarity of this case, that it was a question for the jury as to the extent to which the mind of a man of ordinary prudence might be affected by the situation and the specific direction of the defendant’s servant as to the passenger train. When the defendant’s servant, having the whole field of danger in view, turned the attention of Collins solely to the passenger train, a jury might find that it was not a want of ordinary prudence to give so much attention to that train, that it led to a want of ordinary attention to a possible danger from a car on the freight track, especially when McCaffery did not give a warning as to the freight car, and in fact did not notice its coming in time for Collins to be prepared for it. The situation was peculiar. The space between the tracks furnished safety for Collins, certainly, if he were without the nerves and the sensations of persons not engaged in railroad matters. Such persons are not in the habit of standing within three feet of a passing train going very rapidly, with the usual puffing and escape of steam. Six feet away would, the jury might find, be a distance that ordinary persons might seek. I therefore think that the judge was right in leaving to the jury to determine whether the intestate was negligent. For like reasons the court properly refused to charge that it was the duty of the deceased to have looked for an approaching car on the freight track.

The. court was asked to charge certain propositions based upon the assumption that the deceased was a licensee. The deceased was not a licensee. He had been in effect induced and requested by the defendant to come upon the yard and work in it, for defendant’s benefit as well as his own. Cordell v. The N. Y. C. & H. R. R. Co., 70 N. Y. 119. As to one so present, the defendant owed a duty to be ordinarily prudent in the conduct of its business.

Certain requests presented the proposition that the defendant was not bound to do the things described in the requests. The court rightly refused to charge these matters, because, under the charge as made, the liability of the defendant was not made to rest upon the doing of these things, but upon defendant’s want of care in the running the car upon Collins under the "circumstances..

I am of opinion the judgment and order should be affirmed, with costs.

Freedman, J., concurred.  