
    (80 Hun, 116.)
    LE BAHN v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    July 14, 1894.)
    Master and Servant—Contributory Negligence—Disobeying Instructions;
    Where a railroad employé is injured in consequence of his failure to signal a train to stop, as his instructions required him to do, he is guilty o£ contributory negligence.
    Appeal from circuit court, Montgomery county.
    
      Action by Mary Le Bahn, as administratrix of John Le Bahn, deceased, against the New York Central & Hudson River Railroad Company. There was a judgment of nonsuit, and plaintiff appeals. Affirmed.
    The plaintiff’s intestate was, at the time of his death, a signalman in the ■employ of the defendant, at Palatine Bridge station. In such employment he was also to assist at that place in watering engines. The duty of deceased as a signalman was that when a train came in from the east, going west, and stopped there to take water, he should go to a reel 55 feet west of the water house, pull out the pin that held the reel, when the reel would unwind, and that would adjust the signal of the semaphore 3,000 feet to the west, and so stop any train on No. 1 west of the semaphore from approaching the station from the west near enough to interfere with watering the engine or the passage of passengers to and from the depot and the train standing there. After he had adjusted this signal and otherwise signaled any approaching train on No. 1, he should return to the water house, and assist in adjusting the water pipe to water the engine. The defendant furnished deceased with a lantern, and it was his duty when a train passed the semaphore, before he signaled them by the semaphore to stop, to signal them with his lantern. At the reel or water house an approaching train from the west could be seen over 1,400 feet, and could see the lantern signal. The track of defendant west of the station was straight' for 430 feet from the water house. West of that the tracks curved southerly towards the river, and then curved northerly again before reaching the semaphore, making the semaphore nearly on the bulge of the curve, and so located that it could be seen a long distance west of the semaphore by an approaching engine from the west going east. The water house or tank was west of the depot building, 115 feet 1 inch. The south rail of track No. 1 of defendant’s road was 5 feet 11 inches north from the water house. The track between rails was 5 feet. The space between tracks Nos. 1 and 2 was 6 feet 8 inches. The trains from the west came on track No. 1; those from the east, on track No. 2. The depot buildings are south of all the tracks, and track No. l'is next north of them; so that the depot buildings, water house or tank, semaphore reel, and semaphore were all south of the tracks, being between the tracks and the Mohawk river. The baggage room is in the east end of the depot buildings, and 280 feet east of the semaphore reel, and 225 feet east of the water house or tank. The water for the engines was conveyed from the house or tank to the tender of engines standing on track No. 2 by a tin pipe some 8 inches in diameter, and long enough to extend from the tank to the tender of the engine on track No. 2, connected at one end with the water tank by a hinge, so that, when not in use, it was swung around and hung parallel to the .tracks and west of the tank, being tied at the west end by a rope to a post west of the water house. To use the pipe, they untied the rope from the post, :and swung the pipe over track No. 1 to the engine tender on track No. 2, when the fireman would take charge of it. When so extended over track No. 1, the pipe was 12 feet above the track, and some 2 feet lower than the top of the cab of the engine, so that an engine could not pass on No. 1 when it was in use without injury to the pipe or cab. At this point, and immediately east of the tank, was an overhead river bridge, some 14 feet above the tracks. 000 to 1,200 feet west of the reel is a water trough, where engines are watered while in motion, and trains on No. 1 could see signals at the depot from that point and further west, and could be seen at the depot, and could stop thejr trains before reaching the depot if there signaled. December 27, 1891, deceased had been in the employ of defendant there seven years, and for eight or nine months had worked at the same employment he was engaged in when injured. He was fully instructed as to his duties, and everything was and had continued as before for years. December 27, 1891, about 3 o’clock a. m., deceased was in the baggage room. The approach of the train from the east on track No. 2 was noticed and spoken of, and deceased started out to attend the signals and water the engine. As he went from the baggage room, another employe there with him said to him: “Train No. 12 has not come down yet. Look out for it.” Deceased answered, “Yes.” No. 12 was the train from the west expected on track No. 1, and some 40 minutes late then. Deceased carried his lantern with him, and, when he reached the water tank, he set it down on the east side o£ and behind a box. The train going west was known as train No. 11. The train going east was known as No. 12. The train from the west was some 40 minutes late, and not scheduled to stop at that station. When train No. 12 from the west passed the semaphore, the signal to stop had not been displayed. The engineer saw the light of the standing engine on No. 2, but there was no signal given him to stop. If deceased had swung his lamp as instructed, they would have stopped. He did stop after the accident within 300 to 400 feet, showing full control of the train, and that it could have been stopped in time. The train, having no signal, ran into the depot, tearing down the water pipe, and causing the death of plaintiff’s testator. The negligence of defendant complained of as creating the liability in this case is: First, that defendant should have had a semaphore halfway between the depot and their semaphore, which was 3,000 feet away; second, that the water tank was too near to track No. 1 (5 feet 11 inches). The court held that the semaphore was a protection against trains that were west of it. If the train passed the semaphore, the protection was furnished to the deceased himself by his lantern. Further, that in this case he was specially warned of the approaching train, and, being so, his first duty was to have signaled the train. His own neglect having solely caused his death, plaintiff could not recover.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK JJ.
    Morrel & Spraker (D. S. Morrel, of counsel), for appellant.
    C. D. Prescott, for respondent.
   MAYHAM, P. J.

The learned judge at the circuit dismissed the plaintiff’s complaint, on the ground that the plaintiff’s intestate was guilty of contributory negligence in not signaling the eastbound train, by which he was struck and killed, to stop, by the use of the lantern signal, as he was instructed to in case it was necessary to stop an east-bound train which had passed the semaphore signal stationed 3,000 feet west of the station. The undisputed evidence shows that the lantern signal could be seen for about 1,400 feet west of the station; and that an approaching train from the west could be seen from the station for that distance; and that, if the lantern signal had been displayed, the east-bound train could and would have been stopped before reaching the station, and thus the accident would have been averted. It was clearly a part of the duty of the deceased, as well for the protection of himself as that of the passengers and other persons on westbound trains stopping at this station, either to turn the reel, and thus display the danger signal at the semaphore, or, if the train going east passed the semaphore before that signal could be displayed, then to swing his lantern as soon as an approaching train from the west hove in view, at, as we have seen, a distance of 1,400 feet from the station, and in that way halt the approaching train. This the deceased failed to do, although he was notified that the east-bound train, then past due, had not passed, and might at any moment arrive. Had either of these precautions been adopted, the fatal train would have been brought to a standstill before reaching the place of the accident.

It is idle to speculate whether or not the place of the employment of the deceased could or could not have been made more secure for the employés of the defendant at that point. The-defendant had, it would seem, done its whole duty to the deceased by placing in his hands and under his control two effectual methods of protecting himself from injury, either of which, if applied in this case, would have saved him from harm. It can hardly be said, as matter of law, that the plaintiff in this case proved the-deceased free from contributory negligence;- nor was this one of the class of cases where the question of contributory negligence was involved in such doubt as to make it a question of fact for the jury. The rule of law in this class of cases has been so frequently adverted to, and repeated in the courts, and so thoroughly settled in the court of last resorts in this and other states, that the citation of authorities seems unnecessary. The rule is well summarized by the learned trial judge in dismissing the plaintiff’s-complaint. The judgment should be affirmed, with costs. All concur.  