
    Walter Rega, by John A. Rega, His Guardian ad Litem, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Third. Department,
    November 11, 1914.
    Negligence—injury to employee of lumber company while sitting under car on switch track— contributory negligence.
    An employee of a lumber company, engaged in keeping tally of lumber loaded upon cars upon a branch track of the defendant,' who, while sitting upon the track with his back against the truck of one of the cars, merely to escape a slight mist which was falling, and there doing his work, was injured by the movement of the car, caused by the switching of another car, is guilty of contributory negligence as a matter of law, especially as he had knowledge that cars were being shifted and might at any moment come upon the track where he was sitting. Woodward, J., dissented.
    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 St. Lawrence on the 22d day of September, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 18th day of September, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      Thomas Spratt [George E. Van Kennen of counsel], for the appellant.
    
      Miller & Matterson [ Wordsworth B. Matterson of counsel], for the respondent.
   Smith, P. J.:

This action is not one between master and servant. The plaintiff was an employee of the Skillings, Whitneys & Barnes Lumber Company, which in this opinion will be called the Skillings Company, through whose property the defendant’s tracks ran. Upon the south of defendant’s road upon the said land were two switches, one to the shaving mill and another called the field switch. Upon the north of the defendant’s right of way was the mill of the Skillings Company, to which a switch ran separating before it came to the mill into two branches, one to the north and the other to the south of the mill. It was a matter of daily occurrence for the defendant’s switch engine or shifter to come up from Ogdensburg, about two miles distant, and bring up empty cars for loading and take away those that had been loaded.

The plaintiff Rega was a young man between sixteen and seventeen years of age, and was keeping tally of the lumber loaded upon one of the cars upon the south branch of the mill switch in the Skillings Company’s yard. There were eight other cars upon that track. As the lumber was put into the car the man with whom he was working would call out the amount; the plaintiff would record the same and call back what he had recorded for verification. It appears in evidence that there was a little mist falling upon the morning in question and the plaintiff had gone under the car, sitting upon the track with his back against the west truck, and while there was doing his work. In the shifting of cars by this shifter, or switch engine, one of the cars struck the west car in this line of eight, one of which was thus being loaded, and moved the same eastward, thereby causing to the plaintiff the injuries for which he has recovered in this action. The claim of the plaintiff is that he ought to have been notified by the railroad company that this car was to be disturbed and that the failure of the company so to notify him constituted negligence.

It is unnecessary to discuss the question of the defendant’s negligence, although it does not appear that the defendant had any knowledge whatever that this plaintiff was in this dangerous position, for the reason that the plaintiff himself was in my judgment, as matter of law, guilty of contributory negligence, The mere statement of the facts of the case would seem to me conclusive proof of this proposition. There was no occasion whatever for his getting under the car, except to get into a position of greater comfort and possibly be free from a little mist, through which all the others were working uncomplainingly. That the place was an extremely dangerous one goes without saying; and, moreover, plaintiff had knowledge that for an hour this shifter had been running cars backward and forward upon those switch tracks, and might at any moment come in upon his track. His claim that he did not think it was dangerous because he thought he would be notified is wholly unjustifiable. Shortly before this time he had occupied a similar position under a car upon the field track, which had been moved in a similar way without any notice to him, but fortunately for him in that case the trucks upon which he was resting had moved away from him instead of toward him, and he escaped injury. I can conceive of no case in which the court should hold contributory negligence established as matter of law if not in the case at bar. I, therefore, recommend that the judgment and order be reversed, with costs, and judgment absolute ordered for the defendant, dismissing plaintiff’s complaint, with costs; and I recommend a finding by this court that the plaintiff was guilty of contributory negligence as matter of law, which contributed to cause his injury.

All concurred, except Woodward, J., dissenting.

Judgment and order reversed, with costs, and judgment absolute ordered for defendant dismissing the plaintiff’s complaint, with costs. This court finds that the plaintiff, as matter of law, was guilty of negligence which contributed to his injury.  