
    Katie Collins as Adm’r, etc., of Timothy Collins, Deceased, Resp’t, v. The New York, New Haven and Hartford R. R. Co., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 23, 1887.)
    
    1. Negligence—Railroad—When a question of fact for the jury.
    The intestate had been employed to work in the yard of the defendants by one who had contracted with the defendants to lay water pipes in the yard. There were many tracks in the yard parellel, converging, etc., on which trains were made up, etc., with the use of locomotives. A track on which the freight car which struck the intestate ran, crossed the trench being dug by intestate and others, and part of this trench was between this track and another track on which a passenger train ran. The intestate was at work between the two tracks which were only nine feet agart. One of the defendants’ servants called to the intes: ate, directing him to guard against said passenger train, and he moved from the passenger track toward the freight track, and so near that he was struck by a freight car which had been backed from another track. The injury so received resulting in bis death. Held, that the question of intestate’s negligence was for the jury.
    2. Same—Licensee—When one is not—Duty in conducting business.
    The deceased was not a l'censee. He had been in effect induced and requested by the defendants to come upon the yard and work in it for their benefit as well as his own. As to such a one the defendant owed a duty to be ordinarily prudent in the conduct of their business.
    Appeal by defendant from judgment entered upon verdict for plaintiff, and from order denying motion for new trial.
    
      Frank Loomis, for app’lt; Henry H. Spelman, for resp’t.
   Sedgwick, 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 defendants by one who had contracted with the defendants to lay water pipes 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 plaintiff 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 which struck the intestate ran, crossed the trench. Part of the trench was between the 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 witnesses, 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 Mc-Caffery, a servant of defendants, had at this time switched a track, on which the freight car afterwards ran, so that it might ran upon it. The freight car did not ran 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. Collins, 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 this 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 capacity might be affected by the situation and the specified direction of the defendant’s servant as to the passenger train, when 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 Mr. 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 cited 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 defendants to come upon the yard and work in it, for their benefit as well as his own. Cordell v. The N. Y. C. and H. R. R. Co., 70 N. Y., 118. As to one so prudent the defendant owed a duty to be ordinarily prudent in the conduct of their business.

Certain requests presented the proposition that the defendants were 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 defendants was not made to rest upon the doing of these things, but upon defendants’ want of care in the running the car upon the Collins under the circumstances.

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

Freedman, J., concurs.  