
    John Floettl, Appellant, v. The Third Avenue Railroad Company and The Jonson Engineering and Foundry Company, Respondents.
    Negligence—■ when a cable railroad company is not, and an independent contractor is, liable — statement that a car would not come, made to a workman lying in a trench under a cable car track — instinctive act of a workman in grasping a rail.
    
    In an action brought against the Third Avenue Railroad Company and the Jonson Engineering and Foundry Company to recover damages resulting from personal injuries caused by their alleged negligence, it appeared that the
    
      plaintiff was a workman in the employ of the Jonson Company, which was engaged as an independent contractor in doing certain work about and under the railroad company’s cable road, and that the plaintiff was directed to perform some work which required him to go into a trench which had been dug under the railroad; that the plaintiff at first objected to going into the trench, the bottom of which was not more than a foot below the bottom of the rails, but was told by the foreman of the Jonson Company that he must go; that the work was to be finished by five o’clock in the morning, and that the cars would not begin running until that time.
    Upon the plaintiff’s asking what he should do if a car came while he was in the trench the foreman said that the car would stop. At about twenty minutes past four, and while it was still dark, the foreman notified the plaintiff, who was still in the trench, that a car was coming. The car came and stopped directly over the trench, and the vibration of the cable, which had begun to move, annoying the plaintiff, he instinctively grasped the rail between the front and rear wheels of the car. The car stopped only long enough to take up a faster cable, and upon its starting the fingers of the plaintiff’s hand were cut off by the rear wheel of the car.
    Upon the trial the court dismissed the complaint as to both the defendants.
    
      Held, that as the plaintiff was not an employee of the railroad company, it owed him no further duty than it owed to any person in the street, or to any person working under its tracks with its knowledge;
    That as the foreman of the Jonson Company had no authority from the railroad company to make any statement with regard to the running of the cars, and there being no evidence that the persons operating the car had. any knowledge that there was any one in the trench, or that the car or cable was negligently managed, the disposition made of the cause was, so far as concerned the railroad company, correct;
    That the plaintiff should have been allowed to go to the jury upon the question of the negligence of the Jonson Company;
    That the plaintiff had a right to rely upon the assurance of the foreman to the effect that the cars would not begin running until five o’clock, and that the Jonson Company was liable for making a statement either untrue or not known to be true, or, if the statement was honestly made, it was at fault in not seeing to it that the car was not permitted to pass over the trench before five o’clock;
    That the stopping of the car directly over the trench, only long enough to pick up another cable, was not a compliance with the assurance given the plaintiff;
    That as it appeared that the plaintiff had not had time to come out of the trench, the plaintiff was not to be held liable for his instinctive act in putting up his •hand at a time when he had no reason to think that the car, after having stopped, would start again before he could relax his grasp and change his position.
    Appeal by the plaintiff, John Floettl, from a judgment of the Supreme Court in favor of the defendant, The Third Avenue Railroad Company, entered in the office of the clerk of the connty of Hew York on the 23d day of May, 1896, and also from a judgment in favor of the defendant, The Jonson Engineering and Foundry Company, entered in said clerk’s office on the 26th day of May, 1896, upon a dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Hew York.
    
      Leopold Leo, for the appellant.
    
      John Notmam, and Henry L. Scheuerman, for the respondents.
   Patterson, J.:

This action was brought to recover damages for injuries sustained by the plaintiff, which injuries, it is alleged, resulted from the negligence of both the defendants. lie now appeals from the judgment entered upon a dismissal of his complaint at the trial. The Third • Avenue Railroad Company is a ■ corporation operating a line of street railway cars, moved by cable power, in the city of Hew York, and the defendant, the Jonson Company, is a manufacturing corporation engaged in the business of making and putting in place appliances or apparatus to move cable cars such as were used by the railroad company. On the 17th of March, 1894, the plaintiff was in the employment of the defendant, the Jonson Company, and had been in such employment for some months preceding that date. On the day named the Jonson Company, by its employees or operatives, was, as an independent contractor, doing certain work for the Third Avenue Railroad Company about and under its track, and this plaintiff was one of such operatives or hands engaged in doing some of that work, at a point in Park row, in the city of Hew York, opposite the Times newspaper building. It appears that at the place indicated, a trench or excavation had been dug under the bed of the easterly track of the railroad company, and that it was necessary for some of the employees of the Jonson Company to go into this hole or trench and there do the work of drilling holes through a yoke, which was part of the apparatus connected with the subterranean running equipment of the railroad company’s system. This hole or trench is described as not being deeper than one foot from the level at which the rails rested, that is, below the bottom of the rails. To get in this trench, those who worked in it first laid themselves on their backs, “ caught hold of the rail with both hands, and then pulled ourselves in in that way under the rail and towards the cable and then the work that we had to do was at these yokes.” This plaintiff, having entered in that way, worked at a, yoke on the east side and had his face turned towards the east when the accident happened. It appears that early in the morning of the day on which the accident occurred the plaintiff had been at work in this trench ; that he came out and remained out for about an hour and a half, when the foreman of the Jonson Company directed him to go down again. To this the plaintiff objected, saying that he could not work there, that he was too large a man for it and had not room to work, whereupon the foreman said to him: You have to go in there; the work has to be finished by five o’clock; * * * the cars will stop till five o’clock.” Then the plaintiff said: “ What will I do in there if it does come ? ” To which the foreman replied : “ The car will stop. Go down.” It was testified that the plaintiff was in the hole only half an hour before he was hurt, and the accident occurred about fifteen or twenty minutes past four o’clock in the morning. It was yet dark. The plaintiff and those working with him were lifting up shafting upon the yoke when Mr. Jonson cried out: Look out, Floettl and Wein, the car is coming.” It did come and stopped over the trench. The cable began to move, and its vibration annoyed the plaintiff, and he instinctively raised his hands and caught the rail; the car started, and a wheel of the car passed over his fingers and cut them off. The car came from the south, moved by a slow cable as it came along Park row up to the point at which the plaintiff was working. There it stopped immediately over the hole in which the plaintiff was at work. It remained stationary long enough to take up a speedier cable to which it was to be attached at that point. The plaintiff grasped the rail between the front and rear wheels of the car; the motion was imparted to the car while the plaintiff was still grasping the rail, and the injury ensued in manner as stated, the plaintiff’s fingers being cut off by the rear wheel of the car. Upon that state of the proof, the learned judge at the trial dismissed the complaint, holding that the evidence was insufficient to show negligence on the part of either the railroad company or of the Jonson Company.

As affecting the railroad company, the disposition of the cause made -by the learned judge was right. There was no negligence whatever on the part of that company, or any of its agents or servants, leading to the injuries suffered by the plaintiff. He was not an employee of the railroad company; that company owed him no further duty than such as it owed to any person lawfully in the street or to any person working upon or under the tracks to the knowledge of its officers or servants. The foreman of the Jonson Company was in no sense or manner authorized by the railroad company to make any statement or give any assurance to the plaintiff connected with the operation of the railroad company’s road or the running of its cars. It was doubtless bound to run those cars with regard to the safety of any one at work upon the apparatus connected with the running of its cars. The evidence is altogether insufficient to show that that was not done, or that the car was not carefully operated, or that the railroad company’s servants in charge of the car were in any way remiss in any duty they owed to any person. The car reached the point at which it stopped, to take up the speedier cable, without injury to any one, and there is nothing to show that those operating the car had any knowledge that any one was in the trench, nor is it shown that the cable was negligently operated. The fingers of the plaintiff were cut off by the rear wheel of the car, the plaintiff’s hand grasping the rail between the front and rear wheels wdiile the car was motionless. It is impossible to see, without some evidence to show that the railroad company’s servants knew, or ought to have known, that someone was in the trench, how it can be made responsible for the starting of the car without giving warning. The testimony was entirely inadequate to make out a case of negligence against the railroad company, and the complaint with regard to it was, therefore, properly dismissed.

But with reference to the defendant, the Jonson Company, there was enough in the testimony to go to the jury on the plaintiff’s contention that the company did not furnish to him that protection to which he was entitled in view of the assurance which he had received from the foreman. This view does not result in this case from the application of the rule that an employer is bound to furnish to his servant a safe place in which to work. Where the danger is known to the employee, he has an opportunity to decline the service. If, under ordinary circumstances, and with full knowledge of the danger, he enters upon that service, he takes the risk of his employment precisely in the same way that he would take the risk of operating dangerous machinery known to him to he dangerous. (Hickey v. Taaffe, 105 N. Y. 26; Cahill v. Hilton, 106 id. 512; Cullen v. National Sheet Metal Roofing Co., 114 id. 45; Shields v. N Y. C. & H. R. R. R. Co., 133 id. 557.) As was said in the case of McGovern v. Central Vermont R. R. Co. (123 N. Y. 287): “ If the servant puts himself in the way of dangerous machinery with knowledge of its character, or places himself in the way of bodies moving in their accustomed orbit with irresistible force, and is thereby injured, it will generally be regarded as the result of his own carelessness, but if he is engaged in a business which may be. safely carried on according to the degree of care and caution used in prosecuting it, but by omission of such care may become hazardous to human life, it is the duty of those carrying on such business to adopt all reasonable precaution to avoid the occurrence of such danger by adopting the modes of conducting the business to the avoidance of the ascertainable dangers accompanying its exercise. In other words, it is the duty of the master having control of the times, places and conditions under which the servant is required to labor, to guard him against probable danger in all cases in which they may be done by the exercise of reasonable caution.”

That the place at which the plaintiff was put to work was one which might become dangerous is manifest; and the particular danger to which the plaintiff would be exposed was apprehended and anticipated by both the plaintiff and the person standing in the place of the master on the day and at the time this accident occurred. The testimony of the plaintiff and of the witness W ein is quite direct to the point of the reluctance of the plaintiff to enter into the trench in view of the possibility of the cable being started and of a car coming while he was working therein. It was known that under such circumstances that place would become dangerous, notwithstanding which, the direction was given by the foreman to the plaintiff to go into the trench, and that direction the plaintiff would not obey until he received an assurance that he would be protected from what he apprehended to be the danger of complying with it. Upon his expressing his fears and his reluctance, he received from the foreman that which was equivalent, under the circumstances, to an assurance that the conditions were ór would be such that the apprehended peril would not occur. He was told that the work at the yoke must be completed by five o’clock, and that cars would not run until five o’clock. In view of what was said between the plaintiff and the foreman, the only construction that can be given to the language of the foreman is that it was an assurance that the plaintiff would be exempt from the particular danger he apprehended, and from which it was obviously the duty of his employer to shield him. There is nothing in the testimony which countervails this view. The plaintiff did in further conversation ask the question: What will I do in there if it does come ” —referring to the car — to which the foreman responded: The car will stop ; go down.” This was but a reiteration in substance of what was said before, and although the words until five o’clock ” were omitted in this second assurance, the plaintiff was justified in understanding that this remark related to the hour, and that no cars would traverse the track where he was working until five o’clock, which, as before remarked, was the hour at which the work was to be completed.

That the car which injured the plaintiff did stop at twenty minutes past four, but only long enough to take up another cable, and stop directly over the trench in which the plaintiff was working, cannot be adjudged to be a compliance with the assurance the plaintiff received.

We do not think this is a case in which it can be said that the plaintiff was coerced to enter the trench. He did not go into it'in obedience to the command, but in reliance on the assurance given. Nor did he rely upon the better judgment of the master concerning the safety of the place in which he was to work. His own evidence excludes that consideration. But he relied, and had the right to rely, upon the promise of his superior, who was in charge of the work, that the place would be made safe under the conditions in which he was induced to work in it. That that was the assurance given and binding upon the master is quite clear in this case. It was not a mere promise or assertion, or guaranty of a fellow-servant. The nature of the work done, the relation of this foreman to that work, the control which he had over the Jonson Company’s servants employed therein, all show, prima facie at least, that this foreman was in a place of responsibility directing work which required skilled labor of a peculiar kind, in and about an apparatus somewhat complicated in its structure. And so the foreman was representing the master in and about that kind of work, the superintendence and direction of which, had the master been an individual and not a corporation, might well have been assumed by the master himself. We think that there was an undertaking on the part of the Jonson Company that the cars would stop until five o’clock, and that plaintiff was justified in relying upon it, and that the negligence of the Jonson Company was in making a statement either untrue or not known to be true, and thereby inducing the plaintiff to enter the trench; or, having honestly made the statement, in not seeing to it that the car was not permitted to come over the trench before five o’clock, and while the plaintiff ivas working therein.

It is contended on the part of the Jonson Company that the plaintiff had warning that the car ivas coming, but instead of keeping still, he put his hand on the rail, and thus caused the injury. The evidence is entirely insufficient to show that the plaintiff received any such warning as would have enabled him, intermediate the giving of the alleged notice and the time at which the car reached the trench, to come out of that trench, reference being had to the peculiar manner in which a person was obliged to enter and come out of the excavation, and it certainly cannot be said that upon the testimony as it stands the plaintiff is responsible for his own injury by putting up his hands, which act was done instinctively in consequence of the vibration of the cable near his head, it not being shown that he had any reason whatever to think that the car having then stopped would proceed on its transit before he could relax his grasp and change his position.

We think, therefore, the nonsuit as to the Jonson Company was erroneous. The judgment must be affirmed, with costs as to the Third Avenue Railroad Company, and as to the Jonson Company reversed, with costs to the appellant to abide the event.

Van Brunt, P. J., Barrett, Williams and O’Brien, JJ., concurred.

Judgment affirmed, with costs as to the Third Avenue Railroad Company, and as to the Jonson Company reversed, and new trial ordered, with costs to appellant to abide event.  