
    ELIZABETH SAMMON, Administratrix, &c., of THOMAS SAMMON, Deceased, Plaintiff, v. THE NEW YORK & HUDSON R. R. COMPANY, Defendant.
    Before Freedman, Van Vorst, and Speir, JJ.
    
      Decided December 9, 1874.
    I. NEGLIGENCE, CONCURRING.—RUN-OYER CASE.
    1. Employee.
    1. When an employee leaves his post of duty and goes to a place of danger (he knowing it to be such), and there receives an injury, he is guilty of contributory negligence,
    Unless, Perhaps, some new duty or obligation to his employer, outside of his regular employment, called him to such place.
    
      a. The above principle applied to the facts of the case at bar, and
    HELD,
    That the deceased, on the facts of the case, was guilty of contributory negligence, and that the complaint of his administratrix was properly dismissed.
    
    1. Speir, J., Dissented, Holding that the question of contributory negligence should have been submitted to the jury.
    
    8. Evidence.—Acts of other Employees in a simpar line of employment are inadmissible when the contract of employment is express in its provisions as to the duties to be performed under it.
    Exceptions ordered to be heard at general term
    The action was brought to recover damages for negligently causing the death of the plaintiff’s intestate husband.
    The evidence shows that the intestate was in the defendant’s employment, and that it was his duty to take charge of the chain across Fifty-second street, west of Fourth avenue, on which defendant’s railroad is laid.
    This chain was permanently fastened at one end to a post, in Fifty-second street, and was to be carried across to the opposite side of the street as occasion might require, and then attached by hooks to a post standing there. It was the duty of the deceased to put up the chain as trains approached and passed, and if people wanted to cross the avenue to warn them. The position of the deceased was at the chains. He had no business on the track, nor any duty there. The deceased was to stop persons from the west from driving or going across the track. A similar chain under the care of another person was attached to a post on the east side of the track at Fifty-second street, to guard ..against crossing from that side, as trains approached and passed.
    At Fiftieth street there was a switch to a side track, on the defendant’s road.
    On August 10, 1872, as a train of cars was passing over the track, going north from the depot at Forty-second street, through the negligence of an employee of the defendant in his omission to put in the iron pin or bolt, intended to fasten and hold the lever attached . to the switch in its place, the switch became displaced, and two of the cars of the train became detached, and ran off the track and collided with some empty cars which were standing on a side track. These were put suddenly in motion, and the deceased was found lying on or near the side track, crushed, and in a dying condition.
    When the plaintiff rested, the defendant moved.to dismiss the complaint, on the ground of contributory negligence on the part of the deceased, and that the company was guilty of no negligence.
    The motion was denied.
    When the evidence on both sides was closed, the motion was renewed and granted, and the plaintiff’s-counsel excepted.
    But judgment was suspended until after a hearing: and determination at general term on a case and exceptions.
    
      Johnson & Ward, attorneys, and John H. Hand, of counsel for plaintiff,
    urged ;—I. Testimony tending: to show contributive negligence was improperly admitted, because no such defence is pleaded. Under section 149 of the Code a defendant is required, in all cases, to-plead any new matter constituting either an entire or partial defense, and can not give such matter in evidence when not set up in the answer (McKyring v. Bull, 16 N. Y. 297).
    II. The testimony' tending to show contributive' negligence is always to be submitted to the jury, unless; entirely undisputed and conclusive (39 N. Y., p. 61).. (1) The question of negligence is ordinarily one of mixed law and fact, and it is the duty of the judge to-submit the same to the jury, with proper instructions, as to the law (Filer v. Central R. R. Co., 49 N. Y. 47 ; Silliman v. Lewis, 49 N. Y. 379). (2) The undisputed existence of a fact sometimes may constitute negligence at law, but where inferences are to be drawn, or it depends upon circumstances, it is always a question, of fact for the jury (Viner v. N. Y. A. G. &. W. Steamship Co., 50 N. Y. 23 ; Worster v. Forty-Second Street R. R. Co., 50 N. Y. 203). (3) Only absolute-proof of negligence which is manifest and not disputed,, can take the question of contributive negligence from-the jury (54 N. Y. 230, Spooner v. Brooklyn C. R. R. Co). (4) Defendant cannot say that the deceased ThomasSammon being on a railroad track of the company was-negligence, per se, so as to exonerate it from liability (Willis v. L. I. R. R. Co., 34 N. Y. 670; Ferris v. U. F. Co., 36 N. Y. 312; McIntyre v. N. Y. C. R. R., 37 
      N. Y. 287; Hulbert v. N. Y. C. R. R., 40 N. Y. 146; Holbrook v. U. & S. R. R. Co., 12 N. Y. 236).
    III. It was error for the judge to refuse to submit the contested question of fact to the jury "(Philadelphia R. R. Co. v. Derby, Am. R. Cas. ; 1 Smith & Bates N. 109, United States Supreme Court, December term, 1852 ; Yale v. Brooklyn R. R. Co., N. Y. Sup'r Ct. R. 686 ; Barrows v. Erie R. R., Id. 44; Strong v. Boston R. R., Id. 54).
    IY. A plaintiff not connected with the negligent occurrence which caused the death, cannot be held accountable for contributivo negligence (30 N. Y. R. 208 ; 36 Id. 655 ; 39 Id. 227).
    
      Eliot F. Shepard, attorney, and of counsel for defendant,
    urged;—I. The negligence of deceased was the immediate cause of his injury and death.
    IT. The subject of Summon’s duties was introduced by plaintiff by her own first witness, and by their second witness Bradley. It was, therefore, independent of the pleadings, and a proper subject of testimony on behalf of defendant. And this inquiry developed his contributory negligence. Such testimony for defendant was also proper under the pleadings, as the complaint alleged that Summon was “entirely free from negligence,” which was denied by the answer, and so one of the issues of the action. The deceased being in defendant’s service, it was necessary for the plaintiff both to-allege and prove his freedom from negligence (McDonall v. Buffum, 31 Bow. Pr. 154). The defendant gave-evidence on this point under the direction of the court, to which no exception was taken. This disposes of ail plaintiff’s exceptions to the evidence of Sammon’s duty and negligence (Wilds v. Hudson R. R. R. 24 N. Y. 442; S. C. 29 N. Y. 315; McCall v. N. Y. Cent. R. R. 54 N. Y. 642; Cruty v. Erie Railway, 3 N. Y. Sup'r Ct. 245).
    
      III. Ho material or relevant testimony, offered by plaintiff, as to Sammon’s duties, was excluded. Plaintiff’s questions were clearly objectionable, for the witnesses knew nothing at all of Sammon’s contract of service with'defendant, nor could they swear as to the knowledge of defendant’s officers on any subject, nor were the duties of other of defendant’s servants at all material. Hearsay evidence, such as plaintiff attempted to introduce, was, on long settled legal principles, inadmissible.
   By the Court.—Van Vorst, J.

No evidence has been adduced, or reason assigned by the plaintiff, to account for the presence of the deceased at the place of known danger, where he was killed.

Had he been an ordinary traveler, killed in an attempt to cross the track at Fifty-second street, while the chains were up, to indicate that trains were passing, or about to pass, the fact that such reasonable precautions had been taken by the defendants, would seem to characterize such act as exceedingly rash, and would justify the conclusion that he had been guilty of contributory negligence.

But the deceased was an employee of the company, having charge of the chain, with specific duties.

It is conceivable that some extraordinary emergency might possibly arise, sufficient to justify him in leaving his station, and going upon the track. Some new duty or obligation to his employer, or others, outside of his regular employment, might possibly call him there (Eckert v. Long Island R. R. 43 N. Y. 502).

But the evidence shows no such call or duty on the occasion in question.

Franklin, the depot master of the defendants, testified that he hired the deceased to attend to the chains, and gave him instructions to perform such services. That he was instructed to attend the chain at Fifty-second street. That he had no business to go upon the track ; it was not his duty to go there. That he had nothing to do with trains or flagging them. He was to flag wagons and stop them from going on the track. His position was at the chain.

The witness Miller, a fellow employee with the deceased, in the defendant’s service, and to whom deceased was brought by the depot master, “to break him in on the chain,” says that the deceased was seen by the depot master on some occasions standing with the witness on the track, and that he, witness, was instructed by the depot master to keep deceased at the chain, and that he informed deceased that he was instructed to tell him to stay back at his chain, where he belonged.

Deceased had both a white and a red flag, and it was his duty to keep people off the track when trains were passing.

If a wagon happened to get on the track a red flag was used to stop the train. He could see the trains approaching, by looking down the avenue, without going off the sidewalk.

No one saw the deceased when he received the injury which led to his death. Nor is there definite evidence as to how it was occasioned. He was found crushed, and in a dying condition.

One witness testified that when he last saw him he was lying “ between the cars, between the rails of the track, and between some large stones that were knocked up.” He was on the point of expiring when they removed him. In another place, the same witness says the deceased was found about the middle of the two tracks, between the track on which the freight cars were, and another one; and he thought a freight car had struck him.

Another witness says he was killed between the side and main track.

It is not entirely clear, therefore, where the deceased, was standing at the time he received the injury, nor what killed him. But in the view which we have taken, of this case, it is not material whether he was injured while standing between the freight cars on the sidetrack, one of which had been put suddenly in motion by the cars, detached from its train through the-negligent handling of the switch, or whether he was. between the two tracks. The result would be the same.

The switch, through the negligent handling of which, two cars were thrown off the track, was two-blocks distant from the position of the deceased at the-chain.

He had no summons to duty there, nor any cara or responsibility in regard to the accident, or the detached or freight cars. His position on the west side of Fourth ávenue, at the chain, and where it was-his duty, under express directions, to remain, was forty feet distant from the side track, on which the freight cars were standing, and was a place of safety, as the place of duty is usually.

Although, in leaving the chain he violated his duty, yet his negligence in that respect only, was not an immediate cause of his death.

His contributory negligence consisted in going,, under the circumstances, to the spot where he was. killed.

He knew the purpose for which the chain was suspended, and that it was a warning to keep persons from the tracks while trains were passing.

The chain was placed there expressly to prevent persons from attempting to cross at such times.

His being on the tracks, or between them, under the conditions stated in the evidence, in a position of known danger, was presumptively negligent, and, being wholly unexplained, is conclusive.

The employer should not beheld liable for an injury sustained by an employee, in a place of known danger, to which he unnecessarily, and without command, exposed himself, and to which no duty or obligation within the scope of his employment called him.

This view of the case dispenses with an inquiry in respect to the negligence of the defendants, and the extent to which it contributed to, or ca'used the decedent’s death.

As has already been observed, no person saw the -decedent at the precise time he was injured. That he was struck by the car put in motion on the side track, by the car detached through the negligence at the switch, is highly probable. If there had been no contributory negligence on the plaintiff’s part, there was sufficient in the evidence to have carried the case to the jury as to whether or not the negligence of the defendants was the cause of his death.

There was no conflict in the evidence, which would have justified the submission to the jury of the question, of the plaintiff’s negligence.

As already observed, the duties of the deceased, under his hiring, are clearly proven. His position was at the chain, to put it up, and remain there with his flag to warn persons until the danger was past, and the crossing safe.

The manner in which the witness Bradley, who had -some years before been a street-flagman, performed his duties, or what his duties were, or what others had done or did, do not affect the question as to what the deceased was to do under his specific employment.

In order to have justified the submission of the case as to the negligence of the defendant, the deceased should have been shown to have been without fault.

The burden was on the plaintiff to do this. This she failed to do.

We are of opinion that the complaint was properly •dismissed. We find no error in the rulings on the trial which would justify a disturbance of the verdict.

The motion for a new trial should be denied, and judgment ordered for the defendants, according to the-direction of the judge on the trial, with costs.

Freedman, J., concurred.

Speir, J. (Dissenting).

Whether the deceased was guilty of contributive negligence, even if he was told to-stay at his chain by the defendants, and did not remain at that post, must depend upon the question as to whether he also acted as a flagman with the knowledge of the defendants. It appeared that he had a white flag in his hands at the time, which was given to-him by the defendant’s agent. If he had the white flag in his hands, which was used by him to signify that' everything was in proper condition when the-train was approaching, then it is reasonable and sensible to suppose he would be justified in leaving his post at the chain if necessary to show his wliité signal.

The evidence is plain, and repeated several times, that the deceased was killed between the side tracks and the main tracks of the road. It is then not certain but he may have been hit by the car, which, it is admitted,, ran against the freight cars standing on the side track. At any rate, it is not proven in what precise way he lost his life. In such a case I think it is going too far to-infer he had by his own act contributed to the accident.

The offer was made to show that the flagman had to-cross the tracks for the purpose of stopping trains, and for the purpose of flagging trains, and to warn people-of danger, and that it was their duty to do so. This-was not permitted. The answer of the witness, “ that he had seen the deceased flag trains dozens of times,”' was stricken out on motion. If the defendant put flags-into his hands, he was practically a flagman, whether that was his special duty or not. I think it was error to refuse testimony that flagmen were constantly in the habit of stopping and flagging trains with the knowledge of the company, and the question of contributive negligence should have been submitted to the jury. I am of the opinion that a new trial should be granted, with costs to the appellants to abide the event.  