
    (55 App. Div. 566.)
    DIPAOLO v. THIRD AVE. R. CO.
    (Supreme Court, Appellate Division, First Department.
    December 7, 1900.)
    1. Appeal—Verdict—Conflicting Evidence.
    Where a street sweeper was injured while at work between the rails of defendant’s track, and he and another witness testified that he was struck by defendant’s car, while the employes on the car testified that he was struck by a wagon, a verdict for plaintiff will not be disturbed on appeal.
    
      2. Street Railroads—Tracks—Injuries—Street Sweeper — Looking and Listening.
    A street sweeper; while at work between the rails of defendant’s track, was injured by a car which approached without giving the warning which •it was the custom to give when approaching street sweepers. Oars passed •every half minute, and he was required to do his work in the intervals. .A car had passed a half minute before, which he had stepped aside to avoid, and then gone to work again. Defendant requested a charge that plaintiff was bound to look and listen for the approach of ears, and to exercise reasonable care to avoid them. Held properly refused, since the rule as to looking and listening does not apply to persons whose duties in the public service require them to work on such tracks. „
    8. Same—Instructions—Request.
    It was proper to refuse a request for an instruction on reasonable care which was coupled with a request to charge that plaintiff was bound to look and listen for the approach of cars, since such latter rule does not apply to those whose duties in the public service require them to work on the tracks.
    '4. Same.
    It was not error to refuse an instruction that, in addition to looking and listening, the street sweeper should act on the knowledge thus gained, and endeavor with reasonable care to avoid the accident, since the rule as to looking and listening did not apply to him.
    ¿5 Same.
    Where an instruction that plaintiff, as a street sweeper, had a right to be where he was, and that he was bound to use ordinary care, had been given, it was not error to refuse an instruction that plaintiff was bound to use care commensurate with the dangers and risks of the situation.
    Appeal from trial term, New York.county.
    Action by Santo Dipaolo against the Third Avenue Railroad Company to recover for injuries. From a judgment in favor of plaintiff, ■and an ordef denving a new trial, defendant appeals.
    Affirmed.
    Argued before" VAN BRUNT, P. J., and HATCH, RUMSEY, PATTERSON, and INGRAHAM, JJ.
    Eugene Treadwell, for appellant.
    M. P. O’Conor, for respondent.
   PATTERSON, J.

The plaintiff, a sweeper in the employ of -the street-cleaning department of the city of New York, while at work sweeping between the rails of one of the tracks of the defendant’s road on Park Row was injured by being struck, as he alleged, by one .of the defendant’s cars. At the time he was struck he was bending mver in the act of sweeping, facing to the south. He was hit in the rforehead, the car approaching him in front. On the trial he and : another witness swore positively that it was a car of the defendant ".by which he was struck, while, on the contrary, the defendant’s servants in charge of the car identified by the plaintiff’s witnesses as the one which injured him swore that that car passed by the plaintiff without touching him, and that he was hit by a beer wagon. On this issue the finding of the jury in the plaintiff’s favor should not be , disturbed. There were facts and circumstances also in evidence which permitted the jury to find freedom from contributory negli- : gence of the plaintiff.

The only matters requiring consideration on the appeal from the judgment arise from criticisms made of the charge of the trial justice, and his refusal to instruct the jury specifically as requested by counsel for the defendant. It is claimed that the justice did not sufficiently define to the jury the nature of contributory negligence, and that, in view of his omission to do so in his charge, it was error to refuse to give to the jury the instructions referred to, as they were necessary to supply the supposed insufficiencies of the charge. The plaintiff had testified that he was bending over at his work, facing to the south, when a north-bound car of the defendant struck him; that the bell or gong of the car was not sounded, and no signal of its approach was given; that a car had passed by him half a minute before, and he had stepped aside to avoid it, and, when it passed, returned to the track, relying upon the sounding of a gong should another car approach. The plaintiff, by the necessity of Ms employment, was compelled to wrork on this thoroughfare under the condition of the defendants’ cars running at half a minute headway. He had been working as a street sweeper in and about the defendant’s tracks for some two years, and it was the custom of the motormen to sound a gong as cars were approaching street swreepers on the tracks. The trial justice in his charge stated to the jury what the plaintiff claimed, namely, that he was injured without negligence on his part, and solely through the negligence of the defendant, and he instructed the jury that it was necessary for them to determine, before there could be a recovery, whether the plaintiff was injured without negligence on his part; and he further instructed them that it was the duty of the plaintiff to sweep the street, and, as a street sweeper, he had a right to be where he was, and that he was bound to use “ordinary care,” and the defendant was also bound to use “ordinary care” in not running him down, and therefore he submitted it to the jury to determine under what circumstances the accident happened. Ho exception was taken by the defendant to the charge of the judge, but its counsel requested the court to charge as follows:

“In respect to looking and listening, I ask your honor to charge that the plaintiff was bound to look and listen for the approach of cars, and to exercise reasonable care to avoid them and get out of their way.”

The court declined to charge otherwise than it had already done, and an exception was taken. That was, in substance, a request to charge the jury the general rule of law applying to pedestrians approaching railway tracks. That rule, in its broad statement, does not apply to persons whose duties in the public service require them to work in or upon car tracks upon a public street. In Smith v. Bailey, 14 App. Div. 283, 43 N. Y. Supp. 856, it was held that a street sweeper employed.™ the public service cannot exercise the same care while in the street as an ordinary pedestrian can, but is bound to use reasonable care to avoid being run over. In Bengivenga v. Railroad Co., 48 App. Div. 515, 62 N. Y. Supp. 912, a workman engaged in repairing a street was struck without warning by a car following one for which he had made way, under circumstances very similar to those appearing in the proof here, and the court said that under ordinary circumstances the plaintiff would be held to have been guilty of contributory negligence, as a matter of law, had he been a traveler upon the highway, but the defendant was chargeable with notice that workmen were upon the track at this point, and were required to be, in order that the work might proceed; that it was evident that the operation of the cars created a condition in which the plaintiff and those engaged upon the improvement were required to work in the intervals between the moving cars upon the track, and under such circumstances would remain thereon, many times, until the car came very close to them. The condition was one under which the person operating the car was required to exercise extreme care for the protection of the workmen, and the proof authorized a finding that no warning of any description was given of the approach of the car, and the plaintiff was working under conditions which gave him the right to assume that warning would be given, and the plaintiff might rely upon the presumption that the operator of the car would stop the same at the point where he was struck. In the case at bar the conditions were very similar to those in the case last cited. The plaintiff was working upon the north-bound track. A car passed him, and he immediately resumed his work upon the track, and had the right to assume that some notice of the approach of another car would be given him. But, even if he had not, it was for the jury to say whether, under the circumstances, he was bound to look and listen. The request made of the justice was that he should charge, as matter of law, that the plaintiff was bound to look and listen for the approach of cars, and to exercise reasonable care to avoid them. As the request with reference to reasonable care was coupled with that request for a positive instruction, as matter of law, as to the dnty of the plaintiff to look and listen under the conditions proven, the whole request was unavailing.

The second request was that “the requirements of law with respect to looking and listening for an approaching car are not satisfied by the mere physical act of looking and listening, but something-further is required, to wit, that, after having looked and listened, the person should act upon the knowledge thus gained, and endeavor, with reasonable care, to avoid the accident.” That request requires no further consideration, in view of what has already been said.

The third request was “that the plaintiff was bound to use care commensurate with the dangers and risks of the situation.” The court had already charged that the plaintiff was bound to exercise ordinary care, which, of course, referred to the conditions under which he was at the time working; and that measure of care, namely, ordinary care, is only another way of stating that it was the duty of the plaintiff to exercise reasonable care to avoid injury. The charge in this respect was sufficiently explicit, without amplification, and stated the proper rule.

The court was also requested to charge, “If you think that the plaintiff was at all to blame for the injury or for the accident, your verdict must be for the defendant.” That was but another way of stating what the court had already charged and submitted to the jury, viz. whether the plaintiff was injured without negligence on his part. The verdict was not against the weight of evidence. The instructions given were sufficient to present the case fairly to the jury, and the amount of the verdict is not excessive, but moderate.

The judgment and order appealed from must be affirmed, with costs. All concur.  