
    William F. Feeck, as Administrator, etc., of William B. Bartholemew, Deceased, Respondent, v. The Delaware and Hudson Company, Defendant, Impleaded with the New York Central Railroad Company, as Successor, etc., of the New York Central and Hudson River Railroad Company, Appellant.
    Third Department,
    May 3, 1916.
    Railroad — negligence •— death of railroad employee while trespassing upon tracks of another railroad — duty of railroad to employees of other company —proof not justifying recovery.
    The plaintiff’s intestate, an employee of the Delaware and Hudson Company, when engaged in taking the numbers of cars in a freight yard, was killed by a locomotive of the codefendant, the New York Central Railroad Company, which was running backwards on tracks owned by it and which ran parallel to the tracks owned by the decedent’s employer in the same yard. The decedent was engaged only in taking the numbers of the cars of his employer, which was in no way connected with the New York Central Company, except as they occasionally exchanged ears. The evidence showed that the decedent was struck at a time when he had left the tracks of his employer and was upon the tracks of the other railroad company, but there was nothing to show that his duties required him to trespass upon the adjoining tracks. On all the evidence,
    
      
      Held, that the plaintiff was not entitled to recover in that the decedent, being a trespasser upon the tracks of the defendant, the latter was not required to exercise any higher duty than it owed to any other trespasser or mere licensee, and this irrespective of the fact that the tracks of the two companies were parallel and ultimately crossed in the same railroad yard.
    Under the circumstances it is immaterial that the backing locomotive which struck the decedent did not ring a bell or sound a whistle, especially where the ordinances of the municipality where the yard was situated forbade the use of whistles or gongs except in emergency. Howard, J., dissented.
    Appeal by the defendant, the New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 1st day of December, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1915, denying the appellant’s motion for a new trial made upon the minutes.
    
      Visscher, Whalen & Austin [William L. Visscher of counsel], for the appellant.
    
      John li. Parker {Walter A. Fullerton of counsel], for the respondent.
   Woodward, J. :

This action was brought originally against the Delaware and Hudson Company and the New York Central and Hudson River Railroad Company, alleging negligence on the part of the defendants resulting in the death of the plaintiff’s intestate on the 28th day of November, 1913. Upon the trial of the action the complaint was dismissed as to the Delaware and Hudson Company, and the case comes here on an appeal by the New York Central and Hudson River Railroad Company, now known as the New York Central Railroad Company, from the judgment in favor of the plaintiff, entered upon the verdict of the jury.

It is important in the determination of this appeal to discover just what neglect is charged as against the appellant. The complaint, after alleging the incorporation of both of the defendants under the laws of the State of New York, alleges that at the time of the injuries herein complained of plaintiff’s intestate William B. Bartholemew was employed by the defendant D. & H. at its yards in the city of Schenectady, N. Y., and was then and there engaged in interstate commerce between the States of New York, Pennsylvania, Massachusetts and other States; that on or about November 28,1913, at about nine A. m., while plaintiff’s intestate was employed by the defendant D. & H.,. at its yards north of the Union Station in the city of Schenectady, N. Y., and was engaged in the performance of his duties taking the numbers of cars on the joint tracks of defendants at said place, and was lawfully on defendants’ track No. 6, without fault or negligence on his part, but solely by reason of defendants’ negligence, hereinafter specified, plaintiff’s intestate was struck by a locomotive of the defendant New York Central which was running backwards in a northerly direction, and received injuries which resulted in almost instant death.” In giving the details of the alleged negligence on the part of the Delaware and Hudson Company, the plaintiff recognizes the fact that track No. 6, involved in this action, was the property of the New York Central Railroad Company, and, in specifying the alleged negligence of the appellant, it is alleged that the death of William B. Bartholemew was due to the negligence of the defendant New York Central, which consisted, among other things, in that said tracks 5 and 6 of defendant New York Central and all tracks used in common by defendants were so constructed and placed by reason of their close proximity to defendant D. & H.’s tracks and the sharp curve to the east and various other obstructions and other of defendant New York Central’s tracks parallel thereto that it was impossible for one working in the yards of defendant D. & H. at said place to-see or hear an approaching train in time to avoid the same; that said engine of defendant New York Central that struck said William B. Bartholemew was backing in a northerly direction on track 6 of defendant New York Central’s tracks between a string of cars standing on defendant New York Central’s track 5 and a southbound freight train of defendant D. & H. on the track adjoining defendant New York Central’s track 8 on the east, at a high, excessive, unlawful and improper rate of speed, and was not under the control of the engineer thereof; that no bell was rung or whistle blown on said engine nor was any warning whatever given to said William B. Bartholomew of the approach of said engine; that said tracks 5 and 6 of defendant New York Central and all tracks used in common by defendants at said place were so situated in view of said curve and their proximity to defendant D. & H.’s tracks to the east that a watchman should have been kept there to warn persons lawfully in said yards of defendant D. & H., and lawfully upon said tracks 5 and 6 and all' tracks used in common by defendants, or a gong erected and maintained for such purpose, none of which things was done and as to each and all of which several things defendant New York Central was guilty of negligence.”

It will be observed that the appellant had no notice from the pleadings that it was claimed that the New York Central tracks 5 and 6 were jointly used by the defendants; these tracks are referred to as “said tracks 5 and 6 of defendant New York Central and all tracks used in common by defendants were so constructed,” etc., and this expression is twice repeated in effect, but nowhere is it asserted that tracks 5 and 6 were used in common by both defendants, and the record shows that these tracks 5 and 6 were a part of the appellant’s freight yards, and that it was the custom to move freight cars over these tracks in both directions. It is important to keep these facts in mind, because the judgment now before this court on appeal is attempted to be supported upon the theory that the plaintiff’s intestate was, in fact, between track 6 of the New York Central Railroad Company and track 7 of the Delaware and Hudson Company, these tracks running parallel and in close proximity at and near the Union Station in the city of Schenectady, and the accident occurred at a point about sixty feet north of the northerly end of an open platform constructed in connection with the Union Station.

If the rule is observed that the judgment should be secundum allegata et probata, or that the judgment should be rendered in conformity with the allegations and proofs of the parties (Wright v. Delafield, 25 N. Y. 266, 268), then this judgment cannot be sustained, for the proofs not only fail to establish any one of the specified delinquencies, but they fail to establish the facts as set forth in the pleadings, though the inference that the plaintiff’s intestate was upon appellant’s track No. 6, as alleged in the complaint, is very much better supported by the evidence than the suggestion now made that the decedent must have been between the tracks of the two defendants. The body was cut into two parts and the head was found between the tracks 5 and 6, while the remainder of the body was between the rails of track No. 6; and as there is no evidence whatever that he was at any other point at the time of the accident, the inference fairly to be derived from the evidence is that the intestate was either upon track 6, as alleged in the complaint, or that he was between tracks 5 and 6 at the time of the accident, and no reason is suggested in the complaint why the plaintiff’s intestate, employed in the yards of the Delaware and Hudson Company in taking the numbers of cars stationed upon the various sidings, should be found either upon the appellant’s track No. 6, nor between track 5 and 6, for these tracks concededly belong to the appellant, and were not alleged in the complaint to have been used in common by the defendants, nor is there any competent evidence in the record to show that the Delaware and Hudson Company had any right whatever upon track No. 6 belonging to the appellant. Certainly there is no evidence that this employee of the Delaware and Hudson Company, engaged in taking car numbers in the yards of the latter company, had any lawful right to be upon the right of way and between the tracks of the appellant. He was performing no service for the New York Central, and the mere fact, that the two railroads exchanged freight cars over these tracks during the day, or that a particular passenger train might have been started from one of the New York Central tracks to pass over the Delaware and Hudson Company’s lines, did not operate to give the employees of the latter a lawful right to make use of the New York Central’s right of way and tracks. No reason is suggested why the plaintiff’s intestate could not have discharged his duties upon the property of his employer; the evidence seems to indicate that at the time of the accident he was traveling from one part of the Delaware and Hudson Company’s yard to another, making use of the New York Central’s tracks for this purpose, and it is difficult to understand how the appellant owed him any other duty than that of refraining from doing him a wanton injury. Whatever its duties may have been as to its own employees, it was not bound to exercise active diligence to protect the employees of another railroad corporation merely because that other corporation had tracks paralleling its own and ultimately crossing the same, when such employees might happen to come upon its fight of way to serve their own or their master’s purposes, unless the properties of the two corporations were so intimately related that the employees might be said to be mutually engaged in a common occupation. For instance, in the matter of exchanging' cars, the employees of both roads would be entitled to the exercise of reasonable care on the part of the masters while this exchange was going on, and while the respective parties were returning to their own yards, but this obligation would not rest upon either party as to the employees of the other where such employees merely assumed to make use of the right of way in connection with the discharg-e of duties which properly belonged to the master’s own yard, and that was exactly the situation here. So far as the record shows, no interest of the New York Central Company was being served by plaintiff’s intestate; he was doing the work of the Delaware and Hudson Company, and this was work which could have been performed upon the latter’s own premises. If he saw fit to pass from the premises of the Delaware and Hudson Company to those of the appellant he could not impose upon that corporation any higher duties than it would owe to any other trespasser or mere licensee. So far as the plaintiff’s intestate was concerned he bore no other or different relation to the New York Central Railroad Company, in the discharge of his duties as number collector for the Delaware and Hudson Company, than he would if he had been an employee of a car shop, as in the case of McIntyre v. Long Island Railroad Company (150 App. Div. 783, 785), and, under the pleadings and the proof, the plaintiff has no ground for recovery in this case. Section 83 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481) provides that “No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same,” and it cannot be said that plaintiff’s intestate was “ connected with or employed upon the railroad ” of the New York Central Company; the complaint makes no such allegation, and the proof does not establish such a fact. The allegation of the complaint is that at the time of the accident the plaintiff’s intestate “was employed by the defendant D. & H., at its yards in the city of Schenectady,” and this brought him within the exception in the statute in so far as the tracks of the Delaware and Hudson Company were concerned, but it did not operate to give him a right to go over upon the tracks of the New York Central railroad. He had no right to be upon or along the tracks of the New York Central Company at the particular point of the accident, so far as appears from anything in the complaint or the evidence in the case, and certainly not in such a sense as to call upon the appellant to exercise any other care than not to wantonly injure him. (McIntyre v. Long Island Railroad Co., supra.)

If we are right in this proposition, it follows that the mere fact that the appellant did not ring a bell or sound a whistle could not operate to charge the appellant with negligence, and it appears affirmatively that the ordinances of the city of Schenectady forbade the use of whistles and gongs except for emergencies, and we think the present case did not call for these warnings to one who was not properly upon the appellant’s right of way.

The case of Fitzgerald v. Erie Railroad Company (158 App. Div. 801) is so entirely different from the case at bar that it can hardly afford an authority for the respondent, and that case having been retried and judgment in favor of the plaintiff having been reversed as against the weight of evidence (167 App. Div. 958), it can have no controlling weight here, and we are confident that no authority in point can be cited in support of the judgment.

Plaintiff’s intestate was a man of experience in his work; had been in the employ of the Delaware and Hudson Company for several years and was familiar with the situation. He knew that the first six tracks belonged to the New York Central Company and that the last two were the property of his employer, and when he left the right of way of the Delaware and Hudson Company, his employer, and intruded upon the tracks of the New York Central Company he must be presumed to have accepted the risks incident to such a trespass in exactly the same manner as though he had been employed as a carpenter by some third person, and had made use of the railroad of the appellant in disregard of uhe statutes of the State.

The judgment and order appealed from should he reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Howard, J., who dissented.

Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event. The court disapproves of the findings of fact that the defendant was guilty of negligence and the intestate free from contributory negligence.  