
    Thomas J. Nolan, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence — injury to a bricklayer in a trench, under a street railroad, from his placing his hand on the track, while a car was passing — speed of the car unimportant — evidence as to the sounding of the gong.
    
    In an action to recover damages for personal injuries sustained by the plaintiff, a bricklayer, in the employ of a corporation which was engaged in laying conduit pipes.for electric wires along the line of the defendant’s street railway on Broadway in the city of New York, it appeared that the pipes were being laid in a trench which was about four feet deep and extended partially under the defendant’s tracks, and that the plaintiff, with several other bricklayers, was at work in the trench; that he was familiar with the work and knew that cars were frequently passing and repassing.
    The evidence tended to show that while the plaintiff was at work in the trench, a car approached, the presence of which he did not discover until it had partially passed over the trench; that he instinctively placed one of his hands upon the track and a portion of the car passed over it; that if the plaintiff had remained quiet he would have escaped injury.
    
      Held, that the danger which the plaintiff encountered was one the risk of which he had voluntarily assumed;
    That the speed of the car was not important on the question of the defendant’s negligence, as the cause of the injury was the act of the plaintiff in placing his hand upon the rail;
    That testimony given by the plaintiff’s co-employees to the effect that they did not hear the gong of the car sound as it approached the trench, and by the plaintiff to the effect that the gong was not rung at that time, was not sufficient to cany the case to the jury as against the testimony of the motorman and conductor of the car and two others, one of whom was a passenger on the car, to the effect that-the gong was sounded while the car was passing over the trench. O’Brien and Hatch, JJ., dissented.
    Appeal by the plaintiff, Thomas J. Nolan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of April, 1901, upon the dismissal of the comjffaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 29th day of March, 1901, denying the plaintiff’s motion for a new trial.
    
      Thomas P. WioTces, for the appellant.
    
      Charles F. Brown, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages for personal injuries based upon the alleged negligence of the defendant; There is little dispute as to the facts. The plaintiff is a bricklayer, and at the time he was injured was in the employ of the H. B. Camp Company, which company was engaged in laying terra cotta ducts or conduit pipes for electric wires along the line of defendant’s railway on Broadway, in the city of New York. The pipes were being laid in a trench which was about four feet deep and extended partially under the defendant’s "tracks. The plaintiff, with several other bricklayers, was at the time at work in this trench. He was familiar with the work. He had previously been engaged in the same city in similar work, and he knew that the cars were frequently passing and repassing over the tracks while he was prosecuting his work. He describes the way in which he was injured as follows: The first intimation I had of being in any danger, or of anything happening, was of a shadow. I didn’t know exactly what the shadow was, but I know it was a rather long shadow, and instinctively, to save myself, * * * I threw my hands forward to get out of the way of the car. My left hand was crushed. Between the time when I was conscious of the shadow over me and the time when my hand was cut and crushed, an infinitely small time elapsed. ■* * Immediately after the accident occurred I knew what had cast the shadow and crushed my hand, because 1 looked after the car. I didn’t lose consciousness. I looked after the car and saw what kind of a car it was. It was an open car. * * * I threw myself away from the track and threw out my hands. I threw myself away from the track. I am not positive in which direction I threw my hands; towards the track it must have been, because I faced the track, and to save myself pushed myself away.” What actually occurred was that the plaintiff, while the car was passing over him, put one of his hands upon one of the rails of the track, and a portion of the car passed over it and he sustained a serious injury. This, however, did not render the defendant liablé. The plaintiff was in a place of safety when the car commenced to pass over him, and had he remained in the same position he would not have been injured at all. He was familiar with the character of the work and of the risks and dangers incident to it. He had been engaged in the same kind, of work before and had observed the passing and repassing of cars on the very day when he was injured and while at work in this very same trench. And if he had not it must have been obvious to him that if he placed his hand upon the rail while a car was passing he would sustain injuries. The rule is well settled that one who, knowing and appreciating a danger, voluntarily assumes the risk of it, has not, if injured, a just ground of complaint. (Knisley v. Pratt, 148 N. Y. 372, and cases cited; Miller v. Grieme, 53 App. Div. 276.)

But it is said that the defendant was negligent, inasmuch as the car was moving at an improper rate of speed. As to this, there does not seem to be any evidence in the case that it was moving at an improper rate of speed ; on the contrary, the uncontradicted evidence is that it was moving at a low rate of speed, or at about half speed, and it is difficult to see how the speed of the car had anything whatever to do with the accident. The car, as has already been said, had partially passed over the plaintiff before he put up his hand, and if it had been running at a lower rate of speed he would have been injured just the same if he kept his hand upon the rail. What caused his injury was not the speed of the car, but his placing his hand upon the rail while it was passing over that particular place. It is also urged that the defendant was negligent in that it did not notify the plaintiff of the approach of the car, that is, that the gong was not sounded immediately prior to and as the car was passing over the trench. A careful consideration of this record satisfies us that such is not the fact. It is true that several of the persons engaged at work with the plaintiff in the trench testified that they did not hear the gong sound, and the plaintiff testified that “ no bell was rung before the car came up to me,” but these persons- were actively engaged in laying brick ; their minds were upon that work; they were not listening to ascertain whether the bells upon cars which were frequently passing And repassing were rung or not. It is neither reasonable nor probable that they could tell that fact with any degree of accuracy. But in addition to this, the sworn statement of the motorman of the car, introduced in evidence by the plaintiff himself, is to the effect that the bell was rung, and his statement must, under the circumstances^ be held to outweigh that of the plaintiff and his witnesses. And in addition to this the defendant produced four witnesses— the motorman, the conductor and two others, one of whom was a passenger on the -car — all of whom testified substantially to the effect that the gong was being sounded when the car was passing over the trench. Therefore, the negative testimony of the plaintiff’s witnesses that they did not hear the gong sound, including that of the plaintiff himself, considering the position in which they were placed and the work in which they were engaged, wras not sufficient to carry the case to the jury, as against the positive testimony of the defendant’s witnesses who heard the gong sounded, and the statement of the motorman, put in evidence by the plaintiff. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133.) In the case just cited the Court of Appeals said: As against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it to authorize the submission of the question to the jury. It must appear that they were looking, watching and listening for it, that their attention was directed to the fact, so that the evidence will tend, to some extent, to prove the negative.” Neither the plaintiff nor any of his witnesses were watching for this car or listening to determine whether a bell was sounded or not. The truth is the plaintiff was injured by reason of his own inadvertence and carelessness and there is no legal or just ground upon which to hold the defendant responsible.

The judgment, therefore, must be affirmed, with costs.

Yan Brunt, P. J., and Ingraham, J., concurred; O’Brien and Hatch, J J., dissented.

O’Brien, J. (dissenting):

The plaintiff’s work was dangerous if care was not observed by the railroad company at that point in the movement of its cars. That this was recognized by the company sufficiently appears from the fact that it gave instructions to its motormen to approach the place at half speed and give warning by the ringing of the gong. In other words, although the place itself was not dangerous, it could be rendered so by the manner in which the cars were operated. Hence we may assume, as did the company, from the conditions existing wliere the work was being conducted, that the duty of being actively vigilant there in the movement of the cars rested upon it.

Whether that duty was performed is the question presented for our consideration upon this appeal, because we can eliminate from the discussion all reference to contributory negligence since we are agreed that the action of the workman in the trench when moved by the natural impulse of protecting himself from ivhat to him seemed to be an object above him which placed him in danger in involuntarily placing his hand on the track, where it was crushed by the wheels of the car, was not on his part negligent as matter of law, but was a circumstance to be submitted to the jury. Furthermore, on that branch of the case, we have the plaintiff’s testimony that he had no reason to apprehend danger except from approaching cars, and that in each instance on rising and just before again stooping down in the trench, he looked along the track to observe whether a car was approaching, and that immediately prior to the accident, although he looked, he did not see any. With respect, therefore, to the exercise of care on the part of the plaintiff, there was presented sufficient evidence to make the question of contributory negligence one for the jury.

Concerning the defendant’s negligence, the obligation resting upon a railroad company under circumstances somewhat analogous to those in this case was discussed in Bengivenga v. Brooklyn Heights Railroad Co. (48 App. Div. 515) where a workman was injured while employed in asphalting a street through which the defendant’s cars were passing at the time, and wherein it was held, as stated in the head note, that “ the condition was one requiring the person operating the car to exercise extreme care for the protection of the workmen and to -give abundant warning of its approach and to have it under such control that it could be stopped practically upon the instant.” And it was also held that, under the peculiar circumstances appearing, “it was a question for the jury whether the plaintiff should have looked immediately after the passage of the iirst car, or whether he was justified in relying upon the assumption that the defendant would discharge its duty to give warning of the approach of the second car and stop it before the injury was done.”

• In the ease before us the proximate cause of the injury was the want of knowledge on the part of the plaintiff that a car had approached and was just over him, resulting in his involuntarily grasping the rail of the track with his hand, under the impulse of warding off what to him seemed a threatening danger. Of course, if the failure on his part to be aware of the approach of the car was not due to any want of care on the part of the motorman, then the defendant would not be responsible, however grave and serious the accident. In view, therefore, of the duty which the law exacts and which the company recognized as resting upon it, of running the cars at a reduced speed and of sounding the gong so as to give warning of their approach to those working in the trench, it remains to be determined whether there was sufficient evidence of an omission on the part of the company to observe such duty, to raise a question of fact for the jury.

To support the burden resting upon the plaintiff of showing the alleged negligence of the defendant, testimony was given tending to show that the car which injured the plaintiff was going rapidly,” and, within a very short interval after the accident, had reached the block below, and that the plaintiff’s fellow-workmen did not hear ” any gong sounded. This latter testimony being negative in its nature, might not, as to the failure to sound the gong, be sufficient, but in addition we have the plaintiff’s own positive statement that “ no bell was rung.” On the question, therefore, of whether the motorman was negligent in failing to run the car at reduced speed and in not sounding the gong, a prima facie case was made out; and that this was the view of the learned trial judge is evident from the fact that when a motion was made by the defendant at the close of the plaintiff’s case to dismiss the complaint, the trial judge, after the argument, refused to grant it, reserving his decision and. requiring the defendant to put in its evidence. Witnesses were produced, therefore, in opposition to the case thus made by the plaintiff, and their testimony was strong and positive that, at the time of the accident, the car was running at half speed and the gong was being continually sounded; and it was because of the weight which the learned trial judge attached to this testimony that he dismissed the complaint, regarding such evidence as I should also be inclined to regard it, as preponderating in favor of the defendant’s version. There was presented, nevertheless, a question of fact to be disposed of upon conflicting testimony, which question, under the late rule of the Court of Appeals, it was peculiarly within the province of the jury and not of the trial judge to determine.

This I understand to be the law as laid down in the recent ease of McDonald v. Metropolitan Street Railway Co. (167 N. Y. 66), and correctly summarized in the head note, that the court cannot in any case where the right of trial by jury exists, and the evidence presents an actual issue of fact, properly direct a verdict; if, in such a case, it is dissatisfied with the verdict because against the weight or preponderance of evidence, it may be set aside, but a new trial must be granted before another jury, and the direction of a verdict, under such circumstances, is reversible error.”

Upon the authority of this case, therefore, I dissent from the conclusion reached by the majority of the court, and think that the judgment of dismissal should be reversed and a new trial ordered, with costs to the ajjpellant to abide the event.

Hatch, J., concurred.

Judgment affirmed, with costs.  