
    David P. Hennessy, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence — injury, by a railroad car, to a laborer engaged on thepavement of astreet.
    
    In an action to recover damages for personal injuries sustained by the plaintiff while working as a laborer on the pavement of a city street near or between the rails of the defendant’s street railway, evidence that just as the rear of a wagon passed the plaintiff he heard a hail from one of the defendant’s cars, which had given no other signal of its approach, and that the front wheels thereof ran over him, is sufficient to warrant a finding that the defendant was negligent and that the plaintiff was free from contributory negligence.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles A. Collin, and' G. V. Nellany, for the appellant.
    
      Maurice V. Theall \Thomas F. Maguer with him on the brief], for the respondent.
   Goodrich, P. J.:

The plaintiff at the time hereinafter referred to was working as a laborer on the pavement of Third avenue, Brooklyn, near or between the rails of the defendant’s road. A wagon came to the place and there was some conversation with the driver as to his driving or continuing in the track where men were at work. Just as the wagon was passing, a car of the defendant struck the plaintiff so that he was thrown under the wheels of the forward truck, which ran over his leg, and he received an injury which necessitated its amputation. The defendant moved for a dismissal of the complaint, which was refused, and the court submitted the case to the jury in a charge to which there was no exception. A verdict was rendered for $10,000, and the defendant appeals.

The specific allegation of negligence in the complaint is that the plaintiff “ was, without notice or warning, struck by a car.” As it appeared that only the front wheels ran over the . plainti-ffj. and that he was picked up between the fore and hind trucks, we may assume that the car was proceeding slowly and was under control. The plaintiff testified tliat as the rear of -the wagon passed him he heard a hail from the car to get out of the way. “ That was the only warning I had. I did not hear any bell rung. * * ,* I always heard the bell of every other car that morning as it went by.”

The driver of the wagon and a bystander testified that they did not hear any bell or signal of the car, and one of the defendant’s witnesses who was-working with the plaintiff testified tliat lie “ did not hear any sound of the car till it was on top of me.”

On the other hand, the motorman testified that he saw the men at work on the pavement and rang his gong and proceeded slowly; and he and the conductor and four other persons, not connected with the defendant, testified that the bell was ringing for some time before the. accident. .

Thus we have a state of facts similar to those presented in De Graw v. Erie R. R. Co. (49 App. Div. 29). There was evidence from persons so situated as to observe the fact of a failure to ring- the bell. This evidence, slight though it may have been, required the submission of the -case to the jury, and to refuse such submission would have been error. We must, therefore, assume that the jury- have found that the bell was not rung. If it was not rung, the fact was sufficient to justify a finding that the defendant was negligent and that the plaintiff was not.

The judgment should be affirmed.

Sewell, o ., taking no part.

Judgment and order unanimously affirmed, with costs. ■  