
    Mary J. Wood, as Administratrix, etc., of John C. Dooley, Deceased, Respondent, v. Central New England Railway Company, Appellant.
    Second Department,
    June 12, 1908.
    Railroad—negligence — contributory negligence.
    In an action against a railroad to recover for the death of an eítiployée it . appeared that the pipes of a locomotive froze, and before starting in the morning it was necessary to move the train back and forth a distance of a car length to'thaw them out. While this was being done the intestate, a brakeman, was sent forward to place torpedoes, and on returning, being unable to see the train on account of the storm, he was run over. He knew that the train was moving backward and forward when he left.
    
      EM, that lie was guilty of contributory negligence, irrespective of whether any rule had been promulgated for the protection of employees under such circumstances, j .
    
      Appeal "by tlxe defendant, the Central blew England Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess . on the 20tli day of June, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles M. Sheafe, Jr. [ William Greenough with him on the brief], for the appellant.
    
      Charles Morschauser, for the respondent.
   Miller, J.:

This is an action to recover damages for the death of plaintiff’s intestate, who was the brakeman of a train crew consisting of an engineer, fireman, conductor, baggageman and brakeman. The train consisted of an engine, baggage car, combination smoker and mail car and a coach. The accident occurred at tlie terminus of the line. The train had arrived at that point the night before and was . due to start out at eight-five the next morning. In preparing to start it was necessary to turn the train- on a T. The train was backed onto the main track preparatory to starting, and it was found that the pipes had frozen during the night. In order to thaw out the pipes to get the engine .in condition to work properly the train was moved back and forth a distance of a car length. While this was being done the deceased was sent back on tlie main track one-third of a mile to put torpedoes on the rails to warn any approaching train, and upon returning to his train he vas struck by the rear coach and received injuries from which he died. The wind was blowing, and it was snowing so that a car could be seen only at a distance of about fifty feet. The train had been moving backward and forward, as before stated, before the deceased went back, to place the totyedoes.

The sole ground of liability submitted to the jury was the failure of the defendant to make reasonable rules applicable to the'circumstances disclosed.- It appeared that one . of the defendant’s rules provided: “ When a train is being pushed by an engine (except when shifting and making up trains in yards), a flagman must be stationed in a conspicuous position on the' front of the leading car to immediately signal the engineer in case of danger.” There is some rather vague testimony to the effect that a rule was in force on other roads requiring that to be done under all circumstances when a train was being pushed by an engine. The exception in the defendant’s rule was: “ When shifting and making up trains in yards.” It appears to have been assumed on the trial that the place of the accident was a yard, but a train was not being shifted or made up.' The train had been shifted to the main track, and was being moved backward and forward — “ churned,” as the witnesses say — for the purpose of getting the engine in condition to start on its trip. But irrespective of whether the rule covered the case it is difficult to perceive how the absence of the rule or its non-enforcement caused the accident.

The deceased knew that the train was moving backward and forward when he went back to place the torpedoes. If the storm was so severe that he could not see the train on his return in time to avoid it, it is impossible to understand how a man on the front of the leading car could have seen the deceased in time to signal the engineer. It appears that the track was in a cut at the place of the accident, but there was sufficient room for the deceased to step one side and avoid the train. If the absence or the non-enforcement of a rule was the cause of the accident, it must follow that the deceased was guilty of contributory negligence, and hence it is unnecessary to consider whether the evidence respecting the rule was sufficient to take the case to the jury.

The judgment and order must be reversed.

Woodward, Hooker, Gaynor and Rich, JJ., concurred.

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