
    Katherine Connell, as Administratrix, etc., of Michael Connell, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    May 26, 1911.
    Railroad — negligence — Employers’ Liability Act — death of flagman — safe place to work—failure to ring bell at crossing — when no breach of duty to one not using crossing.
    Where a railroad flagman, for whom the railroad provided no toilet, leaves the crossing at which he is stationed and goes to a nearby retaining wall to urinate, although the relation of master and servant is not suspended, nevertheless the servant is not in his place of Work.
    The master’s duty to furnish his servants a safe place in which to work . extends only to such parts of the premises as he has provided for their occupancy while doing the Work, and to such other parts as he knows . or ought to know that they are accustomed to use while doing it.
    Where, however, a servant goes to some other part of the master’s premises simply for his own-convenience and accommodation, he is to be regarded merely as a licensee.
    Where it does not appear that the master had indicated the place to whieh.the servant went as one to be used for urination, or that he knew or should have known that it was so used, no recovery can be had for the death of the servant, who was killed by a special train while urinating against the retaining wall,, in the absence of proof that the engineer saw him.
    No negligence as to the deceased can be based upon the fact that the engineer did not ring the bell at a grade crossing seventy-five or eighty feet below the place where the accident occurred, especially if there be no proof that, had he done so, the signal would have warned the deceased so that he could have avoided the accident.
    The failure to ring the bell at the crossing did not involve a breach of duty to the deceased.
    Appeal by the defendant, The New York Central and Hudson River 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 Orange on the 3d day of October, 1910, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 21st day of September, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant
    
      R. H. Barnett, for the respondent.
   Jenks, P. J.:

This action is brought under the Employers’ Liability Act. It is clear enough that plaintiff’s intestate was killed in consequence to the passing of defendant’s train. 'When last seen he was standing in a space between the defendant’s tracks and retaining wall, facing that wall, in an act' of urination. The train was an irregular one, south bound, and traveling at the rate of 10 or 12 miles an hour. The intestate was a flagman stationed at the grade crossing of a highway in the city of Newburgh. His long hours of continuous service naturally required him to relieve ■ such calls of nature during service. As there is no proof that the defendant furnished facilities or place for urination, it may be assumed that he was compelled to seek his own place for such purpose. The distance between the nearest rail and the wall was 5 feet 9 inches, and although the overhang of the locomotive was-18 inches, there remained sufficient, space for his security if he had stood close to the wall. His position negatives the supposition that he was looking for any oncoming train, and moreover the evidence shows that his view to the- north was cut off by certain belongings of the defendant in that space. One witness describes the place as “ blinding. ” Doubtless he had taken this occasion intervening the passing of regular trains. It is . but surmise whether he stood too close to the rails for safety or, unheeding, stepped backwards or turned into collision.

Although the relation of master and servant was not suspended at this time (Heldmaier v. Cobbs, 195 III. 172; Cleveland, C., C. & St. L. R. R,. Co. v. Martin, 13 Ind. App. 485), the servant was not in his place of work. And, therefore, this case differs from the cases when the servant went to a water closet, or a lavatory, or a place to drink, or a place to eat a noontide meal or to change his clothes, when such places were either furnished by the master or at least the master had acquiesced in such uses, e. g., Ryan v. Fowler (24 N. Y. 416); Muhlens v. Obermeyer & Liebmann (83 App. Div. 88); Muller v. Oakes Mfg. Co. (113 id. 689); Cleveland, C., C. & St. L. R. R. Co. v. Martin (supra). For in this case the servant had left his post and had sought this place in the premises of the master for his own personal convenience or necessity. And there is no proof that the master had indicated this place as one to he used for urination, or that the master knew or should have known that it had been so used, or that- necessarily it only could be used for that purpose. “A master’s duty in r'espect to furnishing his servants a safe place in which to work extends to such parts of his premises only as he has .prepared for their occupancy while doing his work, and to such other parts as he knows or ought to know they are accustomed to use while doing it. ” ' (Morrison v. Burgess Sulphite Fibre Co., 70 N. H. 406, quoted in Labatt Mast. & Serv. 1845. See, too, Keenan v. New York, etc., R. Co., 2Misc. Rep. 34; affd., 145 N. Y. 190; Ahern v. Hildreth, 183 Mass. 296.) • And when the servant goes to some other part of the master’s premises simply for his own convenience and accom- " modation, the g:eñeral rule is that he is regarded as a licensee. (Schmnoske v. Asphalt Ready Roofing Co., 129 App. Div. 500; O’Hare v. O’Rourke Engineering Const. Co., 135 id. 348; Haber v. Jenkins Rubber Co., 72 N. J. L. 171-174; Labatt, supra, 1846, and authorities cited.) But there is a well-recognized exception to this rule, which requires discussion of the assigned negligence in this case. We may first disregard any question that could arise from the presence of the servant upon the tracks or from the fact that he was or should have been seen from the oncoming train. For there is no evidence that he was ever upon the tracks, and there is evidence that when last seen at the time the train was but 10 feet distant he was not upon the tracks, and which indicates that he could not have been seen from the oncoming' train. The exception to the rule is expressed in Larmore v. Crown Point Iron Co. (101 N. Y. 395), as follows: “ The duty of keeping premises in' a safe condition even as against a mere licensee may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege theretofore permitted and enjoyed to great danger. The case of running a locomotive without ' warning over a path across the railroad which had been generally used by the public without objection, furnishes an example. (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289. See, also, Beck v. Carter, 68 id. 283.) ” The assigned negligence is that this train approached and came upon the intestate without warning. There is no contention that warning should have been given because of the presence of the intestate, but because there was a grade crossing 75 or 80 feet below the place where the intestate was killed. ■ In other words, it is insisted that the breach of duty, if any, which arose solely in consequence of the existence of this grade crossing might be invoked to the benefit of this plaintiff. There was proof that the rules of the defendant required the ringing of a bell at the approach of such crossings, and there was proof that warranted a conclusion that this was not done in this instance. •

But actionable negligence involves a breach of duty to the plaintiff. Negligence is “not absolute or intrinsic,” but “is always relevant to some circumstances of time, place or person.” (Whart. Neg. [2d ed.] § 25, note, and. authorities cited; Cooley Torts [3d ed.], 1411; S. & R. Neg. § 8, and cases cited; Losee v. Clute, 51 N. Y. 494; Savings Bank v. Ward, 100 U. S. 195.) In Larmore v. Crown Point Iron Co. (101 N. Y. 394) the court, per Andrews, J., say: “ There is no negligence in a legal sense which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending - upon peculiar relations and circumstances.” The duty of the defend7 ant as to those at or near the crossing could. he entirely, different as to those in no way related to the crossing. (Larmore v. Crown Point Iron Co., supra; Miller v. Woodhead, 104 N. Y. 471, 477.) It is not enough, then, to establish that the defendant was negligent in that- it did not ring its bell, but we must go forward to inquire whether in such' negligence there was a breach of duty to the intestate. It seems to me that there was no relation between the crossing and the intestate at the place where he was killed. He was not using the crossing or approaching the crossing, or attempting to cross near unto it, or approaching along the highway. ' Physically he was not far distant, but legally he was not in a place relevant to it. The purpose of the signal was to warn those upon crossing the highway, and perhaps for the benefit of the passengers on the train lest there might be collision. Although the question of signal in this case does not arise under the obligation of statutory requirement but under the common law, yet the application of that, obligation may be considered with reference to decisions under statutes. In Harty v. Central R. R. Co. of New Jersey (42 N. Y. 468) the court approves the language of Allen, J., in People v. New York Central Railroad Co. (25 Barb. 199) in reference to the then existing statute that required signals at crossings: “ The only negligence alleged against the defendant was that its servants upon, the engine did not ring the bell, nor blow the whistle, as required by the New Jersey law. The sole object of this law, it seems to me, was to protect persons traveling upon the highway, at or near the crossing. In the language of Allen, J., in the People v. New York Central Railroad Co. (25 Barb. 199), in reference to a similar law' of this State, ‘ the hazards to be provided against were twofold: 1st. The danger of actual collision at the crossing; and, 2d. That of damage by the' frightening of' teams traveling upon the public highway,’ near the crossing. For the protection of such persons, railroads were required to put tip the signboard at the crossing and to ■ ring the bell, or blow the whistle.” In Vandewater v. N. Y. & N. E. R. R. Co. (135 N. Y. 588) the court say: “When the. duty to give signals at highway crossings was hy statute imposed upon the railroad company, it was held that it did not apply in favor of one who was walking upon the track, hut that it was intended for the benefit of those who were traveling the highway. [Harty v. Central R. R. Co. of New Jersey, supra.] ” Shearman and Redfield on Negligence (5th ed. § 470) say: Statutes, requiring signals at crossings, are enacted only for the benefit of persons intending to cross the track at a lawful crossing,, or proceeding on a highway, parallel with the track. Persons walking along the track or trespassing thereon, or occupied in work upon adjoining land are not entitled to the benefit of such statutes, whatever may be their common-law rights. But one-who crosses the railroad on an open space or private way adjoining the highway, is entitled to the benefit of the statute.” The supposititious case in Chrystal v. T. & B. R. R. Co. (124 N. Y. 523) assumes a relation between the mother and the highway. (See, too, O’Donnell v. Providence, etc., R. Co., 6. R. I. 211; Spicer v. Chesapeake & Ohio R. Co., 34 W. Va. 514; Bell v. Hannibal & St. Joseph R. Co., 72 Mo. 5; Atlanta & Charlotte Air-Line R. Co. v. Gravitt, 93 Ga. 369; Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478.) And finally there is no proof that if the bell of this, train (running at this low rate of speed) had been rung- at such a distance from, the crossing as was sufficient for proper warning for the crossing, such signal would have sufficed to warn the intestate so that he could have avoided contact with this train. The question of fellow-servant is eliminated by the provisions of section 42a of the Railroad Law. (Breed v. Lehigh Valley R. R. Co., 131 App. Div. 492.)

I advise that we should reverse the judgment and order and grant a new trial, costs to abide the event.

Thomas, Carr, Woodward and Bich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  