
    Frank Rich, Respondent, v. The Pennsylvania Railroad Company, Appellant.
    Fourth Department,
    May 2, 1906.
    Negligence—track hand struck by switch engine—failure to show negligence — contributory negligence — engineer of switch engine fellow-servant of track hand. ,
    The plaintiff, a track hand, while working at a city crossing, after stepping off of one track to allow a passenger train to pass, was struck and injured by a backing switch engine on an adjoining track. On both sides of-the crossing there were switching tracks, and switching engines were constantly passing, which was known to the plaintiff. He had an unobstructed view of the backing engine had he looked, and the same was running slowly about ninety feet away when, he. stepped upon the track.
    
      Held, that as a matter of law the plaintiff had failed to show the negligence of. the defendant; that he was guilty of contributory'negligence, and that the risk was incident to the employment. . -
    Kruse, J, (concurring): Although there was a question as to whether the engineer failed to sound a bell the neglect was that of a fellow-servant.,
    McLennan, P-. J., dissented.
    Appeal.by the defendant, The Pennsylvania Railroad Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk off the county-of Cattaraugus on ■the 15th day of August, 1905, Upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25 th day of August, 1905, denying the defendant’s motion for a new trial made upon the minutes. _ -
    
      A. J. Hastings, for the appellant.
    
      Henry Donnelly, for the respondent.
   Nash, J.:

The plaintiff was injured on the 10th of December, 1903. He was employed by the defendant in its yards at Clean for fourteen months prior to the accident. .At the time .lie was hurt he was engaged in digging ice from between the rails' and the planks on what is known as First street crossing. The passenger station is about 400 feet east of the crossing. There are switching tracks and yards on both sides, of First street. Yard engines pass over the street fifty to seventy times a day in twelve hours. As stated by the plaintiff, engines were passing by all the time; “ couldn’t tell how many went by while I was working there. * * * I knew I had" to look out for them. I knew I had tó watch out and get out of the way. I understood that.” There are three' tracks crossing First street. The distance between the tracks is approximately nine feet from center to center of the tracks. A train could be seen by a person standing on First street on the center track as it approached from the west, the direction the engine came, which hit the defendant, at a distance, of about 1,000 feet, before it reached First street. The accident occurred between three an.d four o’clock in the afternoon. The plaintiff was working on the southerly track, which is known as the Bradford track. As the passenger train from Bradford came in from the west towards the station, the plaintiff stepped from that track over onto’ the middle track and was struck by a yard engine going in the same direction as the passenger train. The passenger train was running from ten to fifteen miles an hour when it crossed First street, and the yard engine not over five or six miles an hour. The plaintiff says : “ When I see the Bradford train coming in I left the Bradford track and went on the center track; I was working on the Bradford track before the train come. I had got pretty nearly through on the Bradford track; * * ■ * I went to the other track and I started working and watched both sides when I stepped on the other track, the center track. I did not stand on the center track looking at the Bradford train when it went by. I jumped on the center track and started to work. The Brad-' ford train whistled and rang the bell when it came in, pretty soon after I stepped over on the middle track the other engine.struck me.”

The plaintiff says the bell of the yard engine was not ringing and it was snowing pretty hard, -but he could see up the track toward the engine about three rail lengths, or ninety feet. Four witnesses called by the defendant testified that the bell of the yard engine was ringing as it approached the crossing. The fireman of the yard engine says he was ringing the bell and the engineer and one "of- the crew on the yard engine testify that the bell was ringing as they apprpaclied the crossing. The fireman on the Bradford engine says, that when.about 100 feet from the crossing he saw the plaintiff step over from the Bradford to the center track and watch the Bradford train as it passed by; that lie noticed the yard engine coming and hung, his head out of the cab window, waved his hand to the plaintiff and called to him to attract his attention; that when his engine was over the crossing about twenty-five or thirty feet the yard engine struck the plaintiff, and that the bell on the yard engine was ringing. As' against the positive evidence of these four witnesses, we have the assertion of the plaintiff that the bell was not ringing. Upon this evidence the-case did not present a question for the jury. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133.)

If when the plaintiff saw the Bradford train he had' looked to see if a car of engine was approaching on the center track from the same, direction, he would have seen the yard engine which was in plain sight and less than ninety feet from him. It is quite evident .that he was watching the Bradford train as it.passed and not lopking out for an engine^ which' he knew might be approaching on the track he-was on, at any time. . " '

The plaintiff says that it was snowing pretty hard and the wind was blowing from the west, If this obscured his vision it> required all the moré care on his part. He says he could see three rail lengths; rails about thirty feet long. As the yard engine was appeaching slowly, four to six mües an hour, there was ample opportunity to have'.protected himself from injury if lie had used ordinary care. Five witnesses for, the defendant testified that it was not snowing or storming at the time of. the accident. The engineer of the Bradford train first saw the plaintiff on his track three or four hundred feet away.

It must be held as matter of law that the plaintiff failed' to show any negligence on the part of the defendant, that the plaintiff was guilty; of negligence which contributed to the accident, and that the accident was a risk incident to his employment. (Crowe v. N. Y. C. & H. R. R. R. Co., 70 Hun, 37 ; Tomko v. Central R. R. Co., 1 App. Div. 289; Moccia v. N. Y. C. & H. R. R. R. Co., 46 id. 58.)

The judgment and order should be reversed.

Spring and Williams, JJ., voted fór reversal on the ground that the verdict is against-the. weight of the'evidence; Kruse, J.,,Voted for reversal in, a separate memorandum; McLennan, P. J., dissented and voted for affirmance.

Kruse, J. (concurring) :

I think that the question whether the bell was rung on this engine which struck the plaintiff, as well as the contributory negligence of the plaintiff, was for the jury under the case of McDonald v. Metropolitan Street R. Co. (167 N. Y. 66), but it may well be that their finding is against the weight of evidence.

The serious question in the case, as I view it, is the defendant’s negligence. It seems to have been predicated upon the failure to warn the plaintiff of the approaching engine. The plaintiff was at work at a street crossing. Section 421 of the Penal Code requires the engineer to ring the bell or sound the whistle upon his locomotive when approaching certain road or street crossings, or cause the same to be rung or sounded at least eighty rods from the crossing, and to continue ringing the bell or sounding the whistle at intervals until the locpmotive and the train have passed the crossing. A failure by the engineer to comply with the statute makes him guilty of a misdemeanor. Such was the duty of the engineer on this locomotive, assuming that the statute applies. But if not, the jury were warranted in finding that reasonable care upon his part required' him to give warning irrespective of the statute.

A compliance by the engineer with this statute, if it applies to this case, Would have given the' plaintiff ample warning, but the plaintiff contends the statute was not complied with. The question is, therefore, presented as to whether the failure upon the- part of the engineer to ring the bell or sound the whistle was such an act of negligence as is chargeable to the defendant and, for the consequences of which it is liable to the plaintiff; or whether the plaintiff and the engineer were fellow-servants within the rule which exonerates the master from the consequences of a,negligent act done or suffered by one through which the other is injured. The latter was held in Coon v. Syracuse & Utica R. R. Co. (5 N. Y. 492) and to the same effect is the case of McDonald v. N. Y. C. & H. R. R. R. Co. (63 Hun, 587). If this view is correct, it leads to the same result as the conclusion of Mr. Justice Nash, and in any event-the judgment should be reversed and a new trial ordered.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event. .  