
    (49 Misc. Rep. 620)
    CAFFI v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Term.
    December 27, 1905.)
    1. Railroads—Negligence—Care as to Persons in Railroad Yard.
    A railroad owes one lawfully in its yard, while in the employ of an independent contractor, the duty of using reasonable care to avoid injuring him.
    [Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 874.]
    2. Same—Absence of Signals—Evidence—Inference "of Negligence.
    Where plaintiff, while in defendant’s railroad yard in the course of his employment by an independent contractor, was struck in the nighttime by the tender of a locomotive, alleged to have. approached without lights or sign of warning, proof that lights were customarily placed on approaching engines at the place of accident would support an inference of negligence from the particular omission, where no substituted warning was employed.
    3. Same—Evidence—Redirect Examination—Ebbob.
    Where, in an action by an employe of an independent contractor, struck while lawfully in defendant’s railroad yard by an engine tender in the nighttime, plaintiff on cross-examination stated that he could see for a distance of two blocks at the place of the accident, it was error to exclude on redirect examination plaintiff’s explanation as to such statement, as the same did not exclude the probability that he could not distinguish the dark bulk of an unlighted locomotive at that distance, nor that there was an obscured space intervening between his position and the lights two blocks away, whereby nearer objects were less discernible than those on which the light immediately fell.
    [Ed. Note.—Eor cases in point, see vol. 50, Cent. Dig. Witnesses, § 1000.']
    MacLean, J., dissenting. ,
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Action by Raffaelo Caffi against the New York Central & Hudson River Railroad Company. Judgment for defendant, and plaintiff appeals.
    Reversed.
    Argued before SCOTT, P. J., and BISCHOFF and MacEEAN, JJ.
    John C. Oldmixon, for appellant.
    Robert A. Kutschbock, for respondent.
   BISCHOFF, J.

The plaintiff, while present at the defendant’s railroad yard, in the course of his employment by an independent contractor, was struck by the tender of a locomotive, which, as he claims, had approached without lights or sign of warning; the accident having occurred in the nighttime, and with more or less obscurity in.the condition of artificial light. The issue of fact as to whether the tender carried a light would seem to have been given too scant importance by the justice, so far as his stated grounds of decision would indicate. The defendant owed this plaintiff a duty of using reasonable care (Wells v. Railroad Co., 67 App. Div. 212, 74 N. Y, Supp, 196), and the proof that lights were customarily placed upon approaching engines at this place would support an inference of negligence from the particular omission, where no substituted warning was employed. The opinion, however, is not technically a part of the record, and we do not place our reversal of the judgment upon this ground.

A new trial should be had for error in the exclusion of testimony sought to be elicited on redirect examination of the plaintiff to explain his statement on cross-examination that he could see for a distance of two blocks at the place of the accident. This statement, when made, by no means excluded the probability that he could not distinguish the dark bulk of an unlighted locomotive at that distance, nor that there was an obscured space, intervening between his position and the lights two blocks away, whereby nearer objects were less discernible than those upon which the distant light immediately fell. The explanation sought to be made was well within the scope of a redirect examination, and there is no apparent reason for the ruling which excluded evidence which was most relevant to the important question of the plaintiff’s exercise of ordinary care for his own safety. _ •

_ The judgment is therefore reversed, and a new trial ordered, with costs to the appellant to abide the event.

SCOTT, P. J., concurs.

MacLEAN, J. The judgment should be affirmed, in my opinion, upon the opinion and finding of the learned trial justice.  