
    Germano P. Baccelli, as Administrator, etc., of Vincenzo Vicalvi, Deceased, Appellant, v. The Delaware and Hudson Company, Respondent.
    Third Department,
    May 4, 1910.
    Kailroad — negligence — contributory negligence — duty of foreman — regularity of letters of administration.
    Evidence in an action against a railroad to recover for the death of plaintiff’s intestate, a track repairer, examined, and held, to raise questions for the jury as to the contributory negligence of the decedent and as to whether defendant’s foreman used reasonable care to warn him of the approach of the train which killed him.
    The regularity of the plaintiff’s letters of administration cannot be questioned in such an action.
    Houghton, J., dissented.
    Appeal by the plaintiff, Germano P. Baccelli, as administrator, etc., from a judgment of the Supreme Court in favor of. the defendant, entered in the office of the clerk of the county of Saratoga on the 3d day of December, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiffs case on a trial, at the Saratoga Trial Term in an action brought under the Employers’ Liability Act. (See,Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14; Railroad Law [Gen. Laws, chap. 39 ; Laws of 1890-, chap, 565], § 42a, added by Laws of 1906, chap. 657.) ■
    
      Edgar T. Brackett and James A. Beary., for the appellant.
    
      Lewis E. Carr, for the. respondent.
   Kellogg, J.:

The plaintiffs intestate, while in the employ of the defendant as a track repairer, and while replacing a broken bolt in a plate holding the rails together on the north-bound track, was killed by. a train from the south running over him. At the same time a heavy freight train was passing in the opposite direction on the southbound track, the road at the point passing on a curve through a cut. He was at work with one Reynolds, the section boss in charge of the gang. It was the duty of Reynolds to look, out for the gang, and to warn them of the approach of trains. ■ At the tinde of the accident Reynolds was -about 200 feet south of the intestate, and from a semaphore. in sight saw that the train was approaching from the south, and he and liis son stepped ofE from the track and holloed and motioned to the intestate, but he.did not see or hear them as he was intent upon his work, and the train passing him made a great noise. Reynolds had been expecting the train for four minutes before it ran over the intestate. ' .

It being the duty of Reynolds to look out for the men and. notify them when a train was coming, the intestate had a certain right to expect such -notice if a train was coming in the opposite direction. His contributory negligence, and the question, of whether Reynolds was negligent in attempting no other notice except by holloing and waving his hands were fair questions for the jury. If he had time to give other notice, and reasonably believed that the holloing and motions of his arms would not give sufficient notice, it is. for the jury to determine whether he exercised the care of an ordinarily prudent person under the circumstances.

This action was brought by Charles La Belle, as administrator, etc., he having been appointed by the surrogate of Saratoga county, where the intestate met his death. ' The intestate was an unnaturalized Italian, having no relatives in this country, and it is conceded that, by virtue of the treaty between Italy and the United States, the consul-general of that country here has the prior right to administer upon his estate, and the dismissal of the complaint is sought to be sustained upon the ground that the plaintiff had not capacity to sue, a.nd was not the legal administrator. .The letters of administration are apparently regular, and under section 2591 of the Code of Civil Procedure their regularity cannot be questioned in this action. After the trial the letters were revoked, and the consul-general appointed, and is substituted in the action without prejudice to any objection which *the defendant had to the regularity of the action at the time of trial.

The judgment should be" reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Houghton, J., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  