
    Patrick J. Shea, Appellant, v. Westinghouse Electric and Manufacturing Company and The New York, New Haven and Hartford Railroad Company, Respondents.
    Second Department,
    December 21, 1911.
    Railroad—negligence — injury to workman in the employ of an electrical company while crossing railroad tracks — liability of master and of railroad company.
    In an action to recover damages for personal injuries brought against a railroad and an electrical' manufacturing company, it appeared that the plaintiff was in the employ of the manufacturing company which had a • contract for electrifying the lines of the ’railroad company; that the' plaintiff acted as assistant to a man who was installing insulators ' upon the transmission poles, which poles were located along the railroad company’s right of way, but not upon its tracks. In the progress of the work the place of the plaintiff’s employment was changed from day to day and at the time of the accident the work had progressed to a railroad cut twenty feet in depth, where the railroad company had provided overhead crossings. At this .point the railroad company maintained four tracks, the two outside tracks being used for local traffic and the two inside ones for express tracks, the middle or express tracks being separated from the outside tracks by fences. On the day of the accident the plaintiff was directed' to get material from the work train which the manufacturing company had upon the local tracks on the opposite side of the right of way and climbed over the fences, seemed the material and had climbed back over one of the fences upon the express tracks when another workman called out that an express train was approaching; the plaintiff looked in both directions and saw no train. He then dropped the insulator and started to retrace his steps; but when he was in the act of climbing the fence the defendant’s train without sounding any warning, rushed past, scraping him from the fence and injuring him. At the point in question there was a curve in the railroad which prevented trains from being seen- until they were within about one hundred and fifty feet.
    
      Held, that with respect to the railroad company the plaintiff was a trespasser upon the express tracks, and that in the absence of knowledge on the part of the railroad company of his presence on the tracks it owed him no duty whatever;
    That it appearing that the first time the plaintiff looked for trains was when he was in the middle of the express track, and after his companion had told him that an express train was coming, he was guilty of contributory negligence as matter of law;
    That the manufacturing company owed no duty to the plaintiff to provide signals of the approach of trains, as the' point where the accident ■occurred was not the particular place provided by the company for the performance of the work but simply a point reached in the progress of the work; and for this reason and the. further reason that the plaintiff’s place of employment was alongside the tracks and not upon the tracks, and that overhead crossings were available to the plaintiff within a convenient distance, the electrical manufacturing company was not liable to the plaintiff.
    Appeal by the plaintiff, Patrick J. Shea, from a judgment of the Supreme Court in favor of the defendant, The New York, New Haven and Hartford Bailroad Company, entered in the office of the clerk of the county of Westchester on the 16th day of June, 1909, upon the dismissal of the complaint as to said defendant by direction of the court at the close of plaintiff’s case on a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 21st day of May, 1909, setting aside the verdict of a jury in favor of the plaintiff and against the defendant Westinghouse Electric and Manufacturing Company for $1,500.
    
      Michael J. Tierney, for the appellant.
    
      E. Clyde Sherwood [Amos H. Stephens with him on the brief], for the respondent Westinghouse Electric and Manufacturing Company.
    
      Nathaniel S. Corwin [Charles M. Sheafe, Jr., with him on the brief], for the respondent New York, New Haven and Hartford Railroad Company.
   Woodward, J.:

The Westinghouse. Company had a contract with the Yew York, YeW Haven and Hartford Railroad Company for the electrifying of the lines of the latter company between the city of Yew York and Stamford, Conn. The plaintiff was an employee of the Westinghouse Company, and was what was known as a' “ground man,” his duties being to act as an assistant to a man who was engaged at the time of the accident in installing insulators upon the poles or superstructure used for carrying the wires which were to transmit the power for the operation of the trains of the defendant railroad company. The evidence shows that the work was being carried on all the way from Wakefield to Rye, and occasionally as far east .as Stamford, and that the insulators were being placed at ■the rate of from four to six per hour, the installation being for the most part upon poles, and we may assume that these were the usual distance apart, so that the place in which the work was to he performed was along the right of way, but not upon the tracks, of the railroad company. The exact location of the accident was in a cut about 150 feet to the westward of the station at Mount Vernon. There were four tracks, two of them at the extreme outside being-used generally for local traffic, and two inside tracks being devoted to express trains. The two middle tracks at this .particular point were separated from the outside tracks by fences, this apparently being one of the precautions made use of by the' railroad company in taking care of its passenger traffic at the station. On the day of the accident the Westinghouse Company had work trains upon each of the two outside tracks, and the entire traffic of the railroad was concentrated upon the middle tracks. To the westward of the point where the plaintiff was injured there was a curve in the railroad which prevented'trains from being seen until they were within about 150 feet. The plaintiff testified that he was told by his foreman to get the insulators and other materials from the work train at the command of the man who was engaged in installing the insulators, and that the latter directed him to go to the work train, which was on the opposide side of the track from the point where the work was being done, and to bring the necessary materials; that this work had been going on for three or four days, with the plaintiff taking the materials from the work train and carrying them to the lineman; that on the- day in question he had climbed over the fences and secured two insulators weighing about twelve pounds each, and had climbed back over one of the fences, and was upon the express tracks, when ‘his companion, who was acting in a like capacity for another lineman, and who was just ahead of him, called out that “a fast one” was coming, meaning an express train; that plaintiff then looked in both directions and saw no train; that he then dropped the insulators and started to retrace his steps and to climb over the fence which he had just passed over; that he reached the top of the fence and that the defendant’s train, without sounding any warning, rushed past, the cars scraping him as they passed, and that he finally fell down on the ground away from the train, receiving serious injuries. There was evidence in the case that there were overhead crossings of the railroad tracks within a short distance in either direction, and there was no evidence that the plaintiff had been directed in what manner he should go to and from the work train, though it appeared that he had been chmbing the fences and crossing over the tracks; during that day. The learned trial court dismissed the complaint as to the railroad company, holding that there was no evidence of any negligence on the part of that company, and, upon the jury finding’ a verdict against the Westinghouse Company, the motion to set the same aside and to grant a new trial was granted, the court holding that the verdict was. against the weight of evidence as to all of the material issues. The plaintiff appeals from the judgment and order.

We think it entirely clear that the plaintiff has failed to show a breach of any duty owed by-the railroad company to him. The railroad. company, so far as the evidence discloses, had no reason • to expect the plaintiff to be upon its express tracks at this particular time and place. It, therefore, owed him no duty of warning. It-was operating its trains in a cut twenty feet in depth, where overhead crossings had been provided, and where it had fenced off its' tracks from the local tracks for the very purpose of securing safety in operation. It had in no sense invited the plaintiff to climb over these fences and to intrude, upon its tracks; the very presence of the fence was notice to the plaintiff that he was not expected to trespass upon the tracks, and he testifies that his work was not upon such tracks but alongside of them. The plaintiff and his companions were not stationed at this point' to perform a general work requiring days, but were engaged in installing the insulators along the entire length of the tracks from New York to Stamford, and the mere fact that' they happened at this particular moment to be at or near the Mount Vernon station, where the view to the westward was limited by a curve, did not impose any special duty upon the rabroad company; the plaintiff was a trespasser upon these particular tracks at least, and the railroad company, in the absence of knowledge that he was there,, owed no duty to him whatever.. Besides, the plaintiff was guilty of contributory negligence as a matter of law in climbing over the fence and getting upon the defendant’s right of way without taking any precautions whatever to protect himself. He testifies that he had not thought of the train, and the only time that he appears' to have looked for a train was after he was in the middle of the track and after his companion had called to him that a fast one ” was coming. Surely the railroad company could not be held liable for this accident.

The same reasoning applies to the Westinghouse Company. Of course if the plaintiff’s work'had required his presence upon the tracks of the railroad company at this particular place; if the point of the accident had been the place provided by the defendant for the performance of the work, there might have been some duty imposed upon the Westinghouse Company to provide a man to give signals of the approach of trains, but no such condition existed; the special danger complained of was one which grew out of the progress of the work; an hour later the work would have reached a point where the view would have been extended several hundred feet. It was only because in the progress of the work the plaintiff had reached a particular point on the railroad that a condition was created which increased the danger of being upon the track, but as the evidence of the plaintiff himself discloses that his work was not to be performed upon the tracks, but alongside of them, and that there were perfectly safe crossings within a Short distance in either direction, and that the plaintiff had to commit an affirmative act of negligence, amounting to a positive trespass, to get into his position of danger, it is hard to understand how the Westinghouse Company could have been liable for his injuries. That company was not bound to anticipate that its employees would disregard so obvious a warning of danger as the fencing off of these particular tracks; that they would, where safe means were at hand, willfully disregard the precautions of the railroad company and go into a position so openly and obviously dangerous.

The judgment and order appealed from should be affirmed.

Present — Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Judgment and order unanimously affirmed, with costs.  