
    Harry Best, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    March 1, 1907.
    Negligence—injury to pedestrian at railroad crossing — freedom from contributory negligence—when plaintiff not employee.
    The plaintiff was not a regular employee, but an extra brakeman, receiving compensation for each trip when called for service. The defendant maintained a Young Men’s Christian Association, of which the membership was limited to its employees'paying dues. The building also contained the train dispatcher’s office, and was located across the tracks at the end of Seventy-second street, New York city. In order to reach the building it was necessary to descend a staircase leading down a retaining wall, and to cross the defendant’s tracks to the building, this way having been commonly used for thirteen years. The plaintiff having been told that he might be called upon for duty that night, was on his way to the building. The night was dark, but clear. The evidence showed that he crossed a train on the first track, and looked in both directions, .and upon taking two or three steps in advance was run down by the defendant’s locomotive, which was hacking without lights contrary to the company’s rules. .
    
      Held, that the evidence warranted a finding that the plaintiff was free from contributory negligence;
    That, at the time, the plaintiff was not an employee of the defendant in the sense that he assumed the risks of the situation, not. being then employed, but going to enjoy the privileges of an association to which he paid dues;
    That if the master’s negligence he a matter extraneous to the servant’s specific' employment, or if the injury he received when the servant is not engaged in his duties, the servant occupies the status of a stranger;
    That as the association building was maintained by the defendant as a waiting room for those who had relations with the company, and as the approach thereto across the tracks had been maintained for thirteen years to the knowledge of the defendant, and was the only practical method of reaching the building, the plaintiff was not a trespasser, and that it was incumbent upon the defendant to use reasonable care to avoid injury to persons lawfully using such crossing.
    Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16lh day of February, 1906, upon the verdict of a jury for $17,500, and also from an order entered in said clerk’s office on the 16th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      John F. Brennan [Charles C. Pauldvng with him on the brief], for the appellant.
    
      Morgan J. O’Brien [.Abraham Oberstein with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff was about thirty-five or thirty-six years of age. He was injured in an accident upon' the defendant’s railroad a Seventy-second street and Eleventh avenue under circumstances which the jury has' found entitled him to recover damages, which have been fixed at $17,655.02 by the judgment from which the defendant appealed, as well as from the order denying a new trial. It appears that Seventy-second street comes fO' an abrupt end at the defendant’s tracks at the point of the accident; that the defendant had constructed a building, dedicated to the use of the Young Men’s Christian Association and to the defendant’s train dispatcher’s office, which was located across the tracks from the end of Seventy-second street. This Young Men’s Christian Association was limited in its membership to employees of the New York Central and Hudson River Railroad Company, and appears to have been a sort of club-: house for the accommodation of employees while waiting for trains, the members paying the association for the privileges- enjoyed. The plaintiff was not a regular employee; he was an extra brakeman, receiving compensation for each trip made, his time beginning to run from the time that he got on the train, or from the time of his call for the particular service. He had made a trip to Albany, and had returned to New York on. a passenger train; had visited the Young Men’s Christian Association and had been told that he might be called upon to go out with a train during the night. He went to his home and was returning to the Young Men’s Christian Association building at about nine o’clock in the evening. At the point where Seventy second street comes to an end there is a retaining wall, and down this wall is a staircase leading to the defendant’s tracks, and this is the way which has been- commonly used by the members of the association, and the public generally, in reaching the Young'Men’s Christian Association building for a period of at least thirteen, years: The plaintiff took this.common way of reaching the point. He found a train across the first track. He climbed over this, looked in both directions, and descended to the open space between the next line of tracks, and again looked in both directions. He .then stepped forward, and had gone but two or three steps, reaching the next track, when he was run down by one of defendant’s locomotives, which was backing down the track without a light, as required by the company’s rules. The case was submitted to the jury under a charge to which no exceptions are urged here, resulting in a verdict for the plaintiff.

We are clearly of the opinion that the evidence warranted the jury in finding that the plaintiff had exercised reasonable care in crossing the defendant’s tracks. The evidence showed that it was a clear night, but dark; that there "was a train on tracks on both sides of the line where the accident happened, thus obscuring the light from an arc lamp near at hand, and that the plaintiff had looked in both directions before proceeding to. cross the track. Ther.e was no warning given; the locomotive was running backward at the rate of about six' miles an hour, without a light, and the plaintiff was not bound to see this locomotive, if he looked, as he says he did, in the direction from which it was coming. There was sdme evidence -of care in approaching this track; .the plaintiff looked in both directions,- not once, but twice, according to his testimony, which is not contradicted, and from this the jury had a right to hold that he was free from negligence contributing to the accident.

We are equally clear that the plaintiff was not, at the time of the accident, an employee of the defendant, in the sense that he assumed the risks of the situation. He was an extra brakeman, employed for particular trips. He was not" going to his work ; he was merely returning to the Young Men’s Christian Association for the purpose .of being on hand if he was called to go out on a trip, and the law is well settled that if, the master’s negligence is a matter extraneous to bis specific employment, or if the injury be received at a time when the servant is not engaged in his duties, then the servant occupies the position or status of "a stranger. (Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 267, 274.) He was at the time of the accident a stranger to the defendant; he was a member of the Young Men’s Christian Association, going there to enjoy the privileges for which he was paying, and he had the same right to be where he was that any other person would have had who was lawfully seeking entrance to the building.

Nor was the plaintiff a trespasser, as in the case of Clárke v. N. Y. C. & H. R. R. R. Co. (104 App. Div. 167). The Young. Men’s Christian Association building, constructed by.the defend-' ant, and which was limited in its membership) to employees of the defendant, was in effect maintained by the latter as a waiting room for those who had relations with the company, and the evidence shows that the crossing where the defendant was injured, wlnle not a public .highway, had yet been made use'of by members of; the Young Men’s Christian Association and the public for a period o"f at least thirteen years to the knowledge of the defendant; that it was the only practical method of reaching the building. Under such circumstances it was clearly incumbent upon the defendant to use reasonable care to avoid injury to persons lawfully using such " crossing, (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289; Swift v. Staten Island Rapid Transit R. R. Co., 123 id. 645, 648, 649, aud authorities cited.)

The judgment and order appealed from should be affirmed, with costs. -

Present — Hirschberg, P. J., Woodward, Gaynoe, Rich and Miller, JJ..

Judgment and order unanimously affirmed, with costs.  