
    Raffaele Caffi, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Negligence — Contributory negligence — Failure to remain in place of safety.
    In an action brought by an employee of a construction company for injuries sustained by being struck by an engine in defendant’s yard where he was at work, where it appears that, in the performance of his duties, he could have occupied a place of safety, in the absence of any evidence showing an emergency or exigency for occupying a position of danger, the plaintiff cannot recover.
    Appeal by the plaintiff from an order entered in the Municipal Court of the city of Few York, first district, borough of The Bronx, setting aside the verdict of a jury rendered in favor of the plaintiff and ordering a new trial.
    
      L. Edwin Oppenheim, for appellant.
    Charles C. Paulding, for respondent.
   MacLean, J.

The duty of the plaintiff, in the employ of a construction company, required him to watch for and warn workmen" of the approach of trains while they "were at work in the yard of the defendant at Fifty-sixth street and Park avenue. At the time he was struck by an engine of the defendant he was obviously not acting in the performance of his duty, which, as appears from the evidence, might and could have been performed from a position of safety. That through negligence or negligent ignorance he stood at the time of the accident in a position of danger, without any emergency or exigency therefor, does not entitle him to recover from the defendant, even if it were negligent, because he was himself at fault. Keeler v. N. Y. C. & H. R. R. R. Co., 114 App. Div. 807. The verdict in favor of the plaintiff was, therefore, properly set aside and the order should be affirmed, with costs.

Gildebsleeve and Amend, JJ., concur.

Order affirmed, with costs.  