
    Mary A. Pidgeon, Resp’t, v. Long Island Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    Master and servant — Save place.
    The rule of law that a master most furnish to his servant a safe place for the performance of his duties, extends to the obligation of a railroad company to maintain its roadbed and track in a safe condition for use by its employes.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    
      Frederic A. Ward, for app’lt; William C. Beecher, for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment entered upon a verdict in favor of the plaintiff for $5,000 and from an order denying a motion for a new trial upon the minutes of the court. The action is for the recovery of damages resulting from the death of the plaintiff’s intestate, which was caused by the negligence of the defendant. The plaintiff's intestate was in the employ of the defendant, and on the 19th day of March, 1893, he was in charge of a train of freight cars which was passing down the track of the defendant’s railroad from the North Shore freight yard at Long Island City. The tracks cross Borden avenue near the defendant’s yard, and at the point of crossing the tracks of the Long Island City and Newtown trolley road intersect the tracks of the defendant at right angles. The train in charge of the deceased was backing slowly down, and he was standing on the top of a car, directing the movements of the train. Before the train reached Borden avenue, it was switched over from the right-hand track to the left-hand track; and when it was passing over Borden avenue the end car, upon which the deseased was standing, ran off of the track, and collided with the signal tower, which fell upon the deceased and caused his death.. There was evidence tending to show that the track at the avenue crossing was out of order, and had been so for some time. It was described by the witnesses as a •soft, spongy place, -where the tracks settled as the frost came out •of the gound. The track would sink down when the ground was wet. One witness said the rail would sometimes work up and down two or three inches. It was the theory of the plaintiff that such condition of the track caused the car to leave the rail, and the neglect to repair the track and maintain it in a safe condition was the negligence charged against the defendant, and upon which the action was based. The case was fairly submitted to the jury by the trial judge, and we must now assume that the jury gave credit to the testimony introduced by the plaintiff, and adopted her theory in relation to the cause of the accident. The recitation we have made of the facts is sufficient to show that the verdict is amply supported by the evidence and the circumstances surrounding the accident. Such being the situation, the judgment is justified by the law applicable to the case. The obligation of the •master to use proper care and employ suitable skill to furnish a safe and suitable place for the performance of the duties of the servant has been asserted in so many cases and in such a variety of language, that a repetition of the rule, or a citation of authorities for its support, is entirely unnecessary. The verdict of the jury in favor of the plaintiff is a finding that the defendant has failed to discharge its obligation to the deceased, to furnish him a safe place for the performance of his duties. The rule of law extends to the obligation of a railroad company to maintain its roadbed and track in a safe condition for use by its employes. Hawley v. Railway Co., 82 N. Y. 370.

We have not overlooked the contention of the defendant’s counsel upon this appeal that the deceased was guilty of contributory negligence by reason of his knowledge of the condition of the railroad track at the place of the catastrophe. But, if we assume all that was said upon the subject, it fails to show knowledge in the deceased of the extent of the disorder of the track, or of the imminence of the danger therefrom. Moreover, the subject was fully discussed in the charge to the jury, and the question of such contributory negligence was fairly submitted to the jury. We detect no error in the record, and the judgment and order should be affirmed, with costs.

All concur.  