
    BERANDINO v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Division, First Department.
    February 4, 1910.)
    1. Appeal and Eerob (§ 927)—Dismissal of Complaint—Weight of Evidence.
    On appeal from an order dismissing the complaint at the trial, plaintiff is entitled to the most favorable deductions that can be drawn from the evidence.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3748, 4024; Dec. Dig. § 927.]
    2. Master and Servant (§ 107)—Duty to Provide Safe Place to Work-Railroad Companies.
    It is the duty of a railroad company to use reasonable care to provide for an employé whose duty it is to clean locomotives a safe place to work.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 212; Dec. Dig. § 107.]
    3. Master and Servant (§ 141)—Rules—Duty t6 Establish and Enforce.
    It is the duty of a railroad company to establish and enforce proper rules for the protection of an employé engaged in cleaning locomotives if necessary, and a failure to establish such rules, or a laxity in their enforcement, is negligence; and in making such rules the company is bound to use ordinary care, and anticipate and guard against such accidents as. may reasonably, be. foreseen by its managers in the exercise of such ordinary care.
    [Ed. Note.—For other eases, see Master and Servant, Cent. Dig. § 283; Dec. Dig. § 141.]
    4. Master and Servant (§ 286)—Rules—Establishment and Enforcement.
    The duty .of a master and the degree of care required of him is measured by the law of ordinary diligence, considering the danger to be feared; and whether rules for the protection of an employe should be made and enforced is usually for the jury, and it is only where it is beyond dispute that rules were not necessary, or could not have prevented the accident, that the court may hold as a matter of law that the master was not bound to have made rules; so that whether a railroad company should have adopted rules for the protection of its employes at work in a yard in which a number of the tracks were supplied with rails heavily charged with electricity was for the jury.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1036-1038; Dec. Dig. § 286.]
    5. ' Master and Servant (§ 286)—Actions for Injuries—Sufficiency of Evidence.
    Evidence in an action against a railroad company for the death of an employe, caused by contact with -a third rail heavily charged with electricity, held sufficient to take the case to the jury on the question of the master’s negligence in failing to provide a safe place to work.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1021; Dec. Dig. § 286.]
    Appeal from Trial Term, New York County.
    Action by Daniel Berandino against the New York Central & Hudson River Railroad Company. From a judgment dismissing the complaint at the trial, plaintiff appeals.
    Reversed.
    Argued before INGRAHAM, P. J., and McRAUGHDIN, CLARKE, SCOTT, and DOWLING, JJ.
    Richmond J. Reese, for appellant.
    Robert A. Kutschbock, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs-. 1907 to date, & Rep’r indexes
    
    
      
      For other cases see same topic & § dumber in Dec. & Am. Digs. 1907 to daté, & Rep'r Indexes
    
   SCOTT, J.

This is an appeal by plaintiff from a judgment entered upon a dismissal of the complaint at the trial. The action is for damages for the death of plaintiff’s intestate, who was a laborer employed in cleaning defendant’s locomotives at its yard at Wakefield.

This yard was the connecting point between defendant’s electric service and its steam service, where the electric motors used to draw trains in and out of the city of New York are substituted for steam locomotives used on other parts of defendant’s line. There are, of course, a number of tracks in the yard, most of which are electrically equipped, although some are without such equipment. The electrical equipment was what is known as the “third- rail” system, consisting of a rail charged with electricity, fastened to the ties at the same level as the rails of the track, and distant 18 or 20 inches from one of the traction rails. Thig “live” rail was covered on the top and on the side furthest from the track by a wooden covering held in place by a series of earthenware clamps. The purpose of this covering was to protect persons walking in the yard from coming in contact with the “live” rail. There was evidence that the “live” rail was not completely covered at the point where the deceased met his death, and also evidence that there was a hole or depression of some 6 inches under the third rail at that point, which was full of water that had apparently overflowed from a water tank standing opposite.

The deceased, an Italian, who spoke no English and understood but little, was engaged in wiping off and cleaning a steam locomotive which had recently come into the yard. It was standing on an electrified track, taking in water from the tank. The deceased had wiped off the driving wheels, sitting, while doing so, upon the wooden covering of the third rail as upon a bench. He then arose to a standing position, placing his hands while doing so upon the side rod connecting the two driving wheels. He had straightened up into a standing position, when he was instantly killed by a shock, of electricity, undoubtedly resulting from a contact between the back of his leg and the third rail. Although it may have been a careless act for the deceased to sit on the wooden covering of the third rail, it seems to be clear that no harm resulted from that act alone. It might, perhaps, be inferred from the evidence that the contact between his leg and the rail took place while he was rising; but the plaintiff, on this appeal, is entitled to the most favorable deductions that can be drawn from the evidence, and there is evidence to support a finding that the deceased had entirely completed the act of rising before he came into contact with the “live” rail.

It was the defendant’s duty to use reasonable care to provide the deceased, its servant, with a safe place to work, and, if necessary, to establish and enforce proper rules for his protection while engaged in his work, and a failure to establish such rules, or a laxity in their enforcement, constituted negligence. Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666, 31 N. E. 234; Wood on Master and Servant, p. 794, § 403. In making rules for the government of its employes, a railroad corporation is bound to use ordinary care, and to anticipate and guard against such accidents and casualties as may be reasonably foreseen by its managers in the exercise of such ordinary care. Berrigan v. N. Y., Lake Erie & W. R. Co., 131 N. Y. 582, 30 N. E. 57. The duty of the master and the degree of care which he is called upon' to exercise is measured by the law of ordinary diligence, having regard to the danger to be apprehended, and whether or not the casé is one calling for the establishment and enforcement of rules is usually a question for the jury. Devoe v. N. Y. Cent. & Hudson River R. Co., 174 N. Y. 1, 66 N. E. 568.

It is only where it is clear beyond dispute that the situation was not one calling for rules, or one in which no rule could have prevented the accident, that the court' is justified in holding as matter of law that the master was under no obligation to have established rules. This, in our opinion, was not such a case. A railroad yard, is, at best, a dangerous place to work in, and the courts have frequently held that a duty rested upon the master to adopt proper rules for the protection of its employés who are required to work therein. In the defendant’s Wakefield yard there was added to other sources of danger the “live” rails carrying charges of electricity sufficient to produce instant death. The existence of this danger is, of course, patent, and it would seem that it should not be difficult to establish rules which would at least minimize the danger to. those employed as the decedent was. At all events, it was a fair question for the jury, and should have been submitted to them.

So, too, the evidence as to a depression under the third rail suggests a question as to whether the defendant had performed its full duty of providing a safe place to work. Ordinarily, such a depression would perhaps be too trivial to notice; but when taken in conjunction with the “live” rail, and the protrusion of an unguarded part of the rail, or an iron attachment, it might reasonably he held to assume a serious aspect. We think that the evidence as it stood warranted a submission of the case to the jury.

The judgment and order appealed from must therefore be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.  