
    George Kozak, Appellant, v. The Erie Railroad Company, Respondent.
    Second Department,
    December 10, 1909.
    Railroad—master and servant —negligence — injury crossing tracks — duty to guard employees.
    Where in an action by a car repairer to recover for personal injuries, it appears that it was necessary and customary for him and other workmen in going from the tracks where they worked to the toolhouse to cross track No. 13, on which stood a number of disabled cars temporarily out of use; that it was customary for the men to board an engine at this point to be taken home; that the foreman had authorized the practice; that to reach this engine it was necessary to recross track No. 13 from the toolhouse; that while plaintiff was crossing between the disabled cars in order to board the engine to go home they moved and injured him by reason of the impact of other cars which were being shunted in on that track, an order setting aside a verdict for the plaintiff will be reversed and the verdict reinstated.
    The railroad having created and maintained the condition should have used suitable precautions to protect its employees, whose duties required them to cross the track.
    The plaintiff had a right to assume that cars which were designated “disabled ” and “ crippledwould remain stationary until proper warning of an intention to move them.
    Appeal by the plaintiff, George Kozalc, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 21st day of June, 1909, upon the dismissal of the complaint , by direction of the court after a trial at the Orange Trial Term, the verdict of a jury theretofore rendered in favor of the plaintiff having been set aside, ■and also from an order entered in said clerk’s office on the same day setting aside the verdict in plaintiff’s favor and dismissing the complaint.
    
      John O. Robinson [Samuel L. SargentAnd George W. Smyth with him on the brief], for the appellant.
    
      Elbert N. Oakes [Thomas Watts with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff was employed as a car repairer by the defendant, and on the morning of November 25,1908, was engaged in the performance of his duties in the yards at Sparrowbush, near Port Jervis, on the defendant’s lines. As he was crossing the tracks on his way home in the early morning of that day he was run down by one of the defendant’s cars and suffered injuries of so serious a nature that it was found necessary to amputate both of his legs. He brought this action on the theory that the defendant was liable in damages by reason of the negligent acts of the conductor and engineer in charge of the operation of the train which caused his injuries, who, he contends, are not fellow-servants but vice-principals of the corporation within the meaning of section 42a of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1906, chap. 657). ■ It was conceded that this-section Was applicable to-the facts of the case, but the trial court set aside a verdict for $25,000 and dismissed the ,complaint without specifying the grounds for such order, and the plaintiff appeals-to this court.

A somewhat exhaustive examination of the evidence, is necessary in view of our determination to reverse the judgment and order aiid reinstate, the verdict.; and .such examination will disclose, it is. thought, abundant confirmation of. the plaintiff’s contention that there were several controverted questions of fact distinctly for the consideration of the jury, and a, sufficient preponderance of evidence in the plaintiff’s favor, to' sustain the verdict.

The defendant’s yards were crossed from east' to west by a number of parallel tracks, known as receiving tracks,” lying north of the trade on which the plaintiff was injured,, which was known as “ track No. 13.” The plaintiff’s duties required him to make repairs on incoming trains on the receiving tracks, and on the south side of track No. 13 was a toolhouse or shanty, maintained by the defendant as a sort of headquarters- for employees working on the receiving tracks. They were. accustomed to keep, -their working tools there, and had the privilege of staying there in their idle moments.

On the day of the accident, between five and six o’clock in the morning, while it was still dark, the. plaintiff attempted to cross ‘ track No. 13 from the toolhouse to the tracks on the north for the purpose of there, boarding a switch engine to. be taken home as had, it appears, been his custom and that of his fellow-workmen. Standing on track No. 13 at-.that point, and up- and. down the track for some distance, were a nuinber of coal cars which were ■ temporarily-out of usé. At the point where the plaintiff attempted to cross two of these só-called dead or disabled cars were uncoupled, but not far enough apart to permit the plaintiff to pass ’ between them walking upright. . He stooped to pass under the bumpers, and at that moment the line of cars was suddenly moved to the west' for a distance and with a force sufficient to cause the plaintiff’s injuries. ' It.is conceded that the movement of the “dead” cars was caused by the impact, at the.extreme easterly end of the line, of a section of a freight train against which another section of the train was pushed by an engine to effect a coupling of the two sections. Some testimony was offered by the defendant to prove that the plaintiff did not attempt to cross between the cars, but under the body of one of them; otherwise, this is a fair statement of the undisputed matters out of which arise the controverted questions to which the verdict should be allowed to stand as the final answer.

The defendant lays stress on the assertion that the plaintiff had no duties on track Ho. 13; that it was not necessary for him to cross that track to reach his home from the toolhouse. It appears, however, that it had been the custom of the workmen at that point to board the switch engine to be taken to their homes; that the “ boss” of the gang had authorized this practice ; that the plaintiff had crossed in the same place daily for months to get to and from the receiving tracks from the toolhouse, and that this crossing was necessary. In this the plaintiff was corroborated by one of the defendant’s own witnesses, Kilpatrick, a car inspector, whose testimony is : As a matter of fact we men had to cross these tracks, this track' 13, almost daily. Our work could not be done unless we did cross it. ■ It was an absolute necessity for us. men, including Kozak, to cross that track from time to time to do the work that we were asked to do there; most of our work was north of that track. We had to cross it every time we went to our work.” Additional corroboration of the plaintiff’s story as to the necessity of crossing track Ho. 13 is found in the relative situation of the tracks where the repairers worked and their toolhouse ; the tracks on the north side of track Ho. 13 ; the toolhouse on the south side. This condition was created and maintained by the defendant, and suggests a further conclusion which the jury were justified in reaching, that is, that proper warning signals were not given and suitable precautions were not taken by the defendant to protect the employees whose duties required them to cross this track. There is evidence for the defendant that signals were given by the swinging of lanterns ; and here again the plaintiff’s testimony that these were far to the east where the coupling was being done, and so not visible from the disabled cars near the toolhouse, raises a question for the jury as to the sufficiency of the warnings; and again the plaintiff is aided by the defendant’s witness, Kilpatrick, who testified that the distance was at least a quarter, of a mile; so. far away that the lights “ could hot be seen.” .

The testimony of the conductor in charge of the freight train is significant: “ Q. And when you shift a car in on that track yoii ain’t particular as to where it. stops ? A. Ho, sir. . Q. Whether or not—tell the jury whether'or not they do not often run up and strike these crippled cars lying up on the track? A. Tes, sir.. Q. You never paid any attention to crippled cars, did you? A. Ho; 1 have worked there.by that.track for the last two years. During all that time that has been the custom. Q. Shunt cars in on that track ? A. Yes, sir. Q. And tell the jury whether or not the cars as thrown in on that track would often or. not strike these crippled cars tip on the track ? A. Yes, sir; they Would. Q. And jam them back ? ' A. Yes, sir.”

If this reckless manner of shifting the cars had been known to the plaintiff it might be held that he was guilty of contributory negligence ás a matter of law in crossing as he did, .but there is no evi- • dence that lie did know it. He testified that he never saw the cars on track‘Ho. 13 move but once, and on. that occasion warning was given. Here there is another conflict in the evidence which, raised a question for the jury., Certain employees of the defendant testified that the cars, were moved often; but "knowledge 'of the practice, if it existed, is not traced to the' plaintiff. In crossing as he did he was following the custom of his associaties, who had, it would seem, no knowledge of imminent danger. The ■ plaintiff, had a right to assume that cars which the defendant had seen fit to designate"as “disabled” and “crippled” Would remain stationary Until proper warning of- intended movement had been given. The defendant’s evidence that the cars on track Ho. 13 were moved frequently at best shows that these movements were at irregular and uncertain intervals; and, if true, furnishes an additional reason why. the defendant should have safeguarded its employees by some system of rules, regulations, signals and warnings.: The defendant maintained a constant invitation to cross the track at that point, and not only failed to make crossing reasonably safe but rendered it extremely dangerous. In view of all .these facts, We do not think the plaintiff was chargeable with contributory negligence as a matter of law; but that, that question,.as well as the question of the defendant’s negligence,- was for the jury. There was sufficient evidence to sustain the verdict, and the judgment and order should be reversed and the verdict reinstated, with costs.

Present — Hirschberg, P. J., Woodward, Jenks, Thomas and Rich, JJ. '

Judgment and order reversed, with costs, and verdict unanimously reinstated, with costs.  