
    Edward Fay, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    First Department,
    December 24, 1908.
    Railroad — negligence — duty of motorman — charge.
    The plaintiff was a foreman engaged in placing iron girders on the Brooklyn bridge near defendant's railroad tracks, on which trains were running. A girder had been hoisted through an opening in the platform of the bridge so that it extended over the railroad track. When a train approached and stopped, the foreman swung the girder off the track and held it until the train passed. On the approach of a second train the flagman, who had stopped the first train, was absent. The train did not slacken speed and the foreman pushed the girder off the track. His strength, however, was insufficient to hold it and before the train had entirely passed it swung back, hit the second car of the train, and injured the foreman. He had not requested the railroad to stop its trains and gave no signal to the motorman of the second train to stop. Held, there was no evidence of negligence on the part of the railroad company.
    It was error to refuse to charge that if the jury found that the motorman saw that his car could pass in safety, and that there was sufficient room for it so to do, and that no signal was given by the plaintiff to stop, then the verdict must be for the defendant, since it was not the motorman’s duty to stop in the absence of a signal where there was no apparent danger.
    Clarke, J., dissented.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of Hew York on the 13th day of February, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 5th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh, for the appellant.
    
      Jacob Rouss, for the respondent.
   Ingraham, J.:

The plaintiff was the foreman of a firm of contractors named Snare & Triest, who were engaged in extending the platform on the northerly side of the Hew York terminal of the Brooklyn bridge. This structure was built of iron, and at the time of the accident the plaintiff liad commenced putting in place an iron girder about twenty-five feet long and weighing about one and a quarter tons. The defendant was running a line of surface street cars over the bridge. It operated two tracks, one on each side of the platform then being extended. There had been an excavation in the floor of the bridge through which the girders used in the extension of the platform were to be hoisted. The southerly rail of the defendant’s westerly track was about eight inches from the platform. On December 20, 1905, about a quarter to eight in the morning, the plaintiff, who was the foreman of the men engaged in the work, started to hoist a girder through the excavation in the floor of the bridge. The plaintiff went upon the platform where the girder was to be hoisted to see that everything was all right there. The girder came up through the platform so that about a foot of it extended above the old platform, and as the men continued to hoist it, it extended over the track of the defendant, and as it extended further out would interfere with the track so that passing cars would strike it. There was a flagman located on the tracks about fifty feet from where the plaintiff was on the platform to regulate the passing of trains. As a train approached, the plaintiff took hold of the girder and motioned to the flagman, as he said, to “ be kind of careful.” The flagman stopped the train that was approaching. When the train stopped the plaintiff pushed the girder so that the train could pass in safety; the train then passed and the men continued to hoist the girder until it was six feet above the surface of the platform and had swung out two feet over the track. When the plaintiff saw the second train coming along he took hold of the girder again to pull it back so as to clear the track. The train came along at full speed, six or seven miles an hour. When the plaintiff saw the train coming he motioned to the flagman as he did before, but he was not there. lie then motioned to the train and saw a man pulling a bell in the front. The train, however, did not slacken its speed and the plaintiff pushed the girder back off the track. The first coach of the train passed the girder without hitting it, when the plaintiff, unable to hold the girder back, let go of it, and it swung over on the track and hit the second car somewhere about the middle of the car. The edge of the window caught the girder, which in some way caught the plaintiff’s leg and injured him.

It seems to mo that there was no evidence to justify a finding of negligence against the railroad company. There was no relation between the plaintiff and the railroad company that imposed upon the latter the duty of an employer towards an employee. The plaintiff was in charge of the work. He was perfectly familiar with the situation and could see the danger in allowing this girder to swing out over the railroad track, and it was his duty to take measures to prevent an accident. He made no request to the railroad company to stop the trains while he was engaged in this work, but expected to be able to hold the girder back so that trains could pass. He held the girder back for the first train to pass; and when the second train approached he also held the girder back in a position to allow the train to pass in safety. There is nothing in the absence of the flagman that had anything to do with the accident, because all that he motioned the flagman to do was to stop the train until he could swing the girder back. He had swung the girder back before the train arrived, and he had it in a position to enable the train to pass in safety. The difficulty was that his strength was not sufficient to enable him to continue to hold the girder so that it would not strike the train, and the real cause of the accident was that the plaintiff let it go and it swung out over the track after the first car of the second train had passed.

The motorman testified that everything was clear on the track as he approached, and that there was nothing to indicate that there was any danger in proceeding, and this is confirmed by the plaintiff ; that the first he knew of any danger was when the girder crashed into the second car, and that the plaintiff gave the motorman no signal to stop.

It is quite impossible to see what more the defendant could have done, except to suspend the operation of its trains entirely, which was not requested, and there was no indication of danger in the train continuing, as the track was clear when it approached.

The defendant moved to dismiss the complaint both at the close of the plaintiff’s case and at the close of all the testimony. That motion was denied, but it does not appear that the defendant excepted. The question as to whether the verdict was against the evidence is, however, presented by the appeal from the order denying a motion for a new trial. I also think it was error to refuse to charge, as requested by the defendant, that “ if in approaching this iron the motorman saw that his car could pass in safety and there was sufficient room for him to pass in safety and the plaintiff gave no signal to indicate that he understood to mean to stop, then their verdict must be for the defendant, the iron having come in contact with the body of the car after the front had passed.” The court refused to charge this request, and charged the jury that, if the circumstances were such that an ordinary prudent person in charge of this car would have been justified in concluding that he could have passed in safety, then the defendant would not have been guilty of negligence.” That was excepted to by the defendant. This was error. There was nothing to indicate that if the girder was off the track, it was unsafe for the car to pass; and if the plaintiff made no signal to stop the car, it was not the duty of the motorman to stop.

The judgment and order should, therefore, be reversed and a new trial ordered, witlx costs to appellant to abide the event.

Patterson, P. J., Laughlin and Scott, JJ., concurred ; Clarke, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  