
    Anna V. Hintze, as Administratrix, etc., of Otto W. Hintze, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    February 16, 1912.
    Evidence—negligence — negative testimony — failure to ring bell — railroad — death of brakeman •— proof justifying recovery.
    Although both the engineer and fireman of a locomotive which ran over and killed the plaintiff’s intestate testify positively that at the time an automatic bell was ringing, the jury may find to the contrary on the negative testimony of witnesses if they were so close to the place of accident at the time that they could have heard the bell if it had been ringing.
    Action against a railroad company to recover for the death of a patrolman who while engaged in inspecting a third rail system at a point where the track was curved was run down and killed by the defendant’s locomotive. Evidence examined, and held, that a verdict for the plaintiff based on a finding that the defendant was negligent and the decedent free from contributory negligence should be affirmed.
    Appeal by the defendant, The New York Central and Hudson Elver Eailroad 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 15th day of February, 1911, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 14th day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Abram F. Servin and Rosslyn M. Cox, for the respondent.
   Carr, J.:

The defendant appeals from a judgment of $11,064.07 in an action to recover damages for the death of the plaintiff’s husband through the negligence of the defendant. The case was here before and a judgment in favor of the plaintiff was reversed (140 App. Div. 852). That reversal was based upon grounds which do not apply to the present judgment, for on the first trial it was left to the jury to find negligence on the part of the defendant from the conduct of a fellow-servant who was held by this court not to be a vice-principal within the meaning of section 42a of the Bailroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as added by Laws of 1906, chap. 657.)

The decedent was a strong, healthy man of thirty-two years and was employed by the defendant as a “patrolman” on its third' rail electrical system in the neighborhood of Yonkers. His wages were seventy-five dollars a month. On the afternoon of October 20, 1908, about four-thirty o’clock, he was struck by a steam train of the defendant and killed. When so struck, he was apparently between tracks, bending forward doing some kind of work on the third rail track and facing westward towards the river, in the Yonkers yard of the defendant. The negligence charged against the defendant is that its engineer ran the steam train through the yard at a high rate of speed, without giving any signals by hell or whistle, although it was his duty to anticipate the presence of workmen on the tracks and to warn them, whenever he saw them, by sharp, short blasts of the whistle. It is not disputed that no whistle was blown, both the engineer and the fireman so admit and a half dozen witnesses for the plaintiff so testify. The excuse offered by the engineer for not blowing the whistle is that when he discovered that the decedent was on the tracks, the distance was too short to use the whistle, and all that could be done was to put on the emergency brake, which was done, but in vain. The engineer (Signer) testified that he first learned of the decedent’s presence on the tracks by a shout from his fireman (Bobinson) at a time when the train was about thirty-five feet from the decedent. He testified that he had kept a lookout ahead and failed to see the man on the tracks because his train was running on a curve and he could not see straight ahead for any distance. Both he and the fireman testified that the train had given warning by an automatic bell which had been set ringing some considerable dis-stance away and which was still ringing when the man was killed. The rules of the company required the engineer to give warning by whistle whenever he saw any one on the tracks, and likewise required him to keep a lookout for such persons. There was some question whether the engineer had not testified on the first trial that he could see nearly a quarter of a mile ahead at a place shortly below the point where the accident happened. On the second trial, however, he denied the possibility of such a view, and explained or sought to explain what he meant by his former testimony. The testimony of the engineer and fireman as to the ringing of the bell is negatived by all the witnesses for the plaintiff who were at or near the scene of the accident. Some of these were not more than forty feet away when the man was struck, several of them had seen the man at work just before he was struck, and one of them (Bartell) saw the accident happen. All of them were in places where they could have heard the bell if it was ringing.

The defendant urges that their negative testimony cannot be allowed to prevail over the positive testimony of the engineer and fireman, and cites Culhane v. N. Y. C. & H. R. R. R. Co. (60 N. Y. 133) and Foley v. N. Y. C. & H. R. R. R. Co. (197 id. 430) that under these circumstances it was error to submit such question to the jury. In answer to this point the plaintiff cites Greany v. Long Island R. R. Co. (101 N. Y. 419). These authorities leave this question in a vexed and unsatisfactory condition. It seems to us, however, that where witnesses who are near by the train, and so situated that they could not escape hearing the bell had it rung, testify that they did not hear, an issue is raised for the jury even in face of the positive testimony of the engineer and fireman that the bell was ringing. The rulings in the Culhane and Foley cases should not apply to the testimony of witnesses who were well placed to observe the physical phenomena and whose testimony shows generally an active observation thereof. It seems to us that a fair case was made out for a determination by the jury as to the negligence of the defendant on this point.

The next question is as to the absence of contributory negligence on the part of the decedent. It appears that he was doing some kind of work on the third rail, in a stooping position, facing the river. There is no real dispute as to this fact. The rules of the defendant required him to face the traffic. Apparently he did not obey this rule, and there is no evidence that he kept any outlook for an oncoming train. There were some peculiar circumstances that existed which might have justified his failure to maintain a personal lookout. He was working in company with another patrolman, one Flynn. The custom, based upon instructions from superiors, was that when one patrolman was working the other should keep a lookout. The decedent was working on the track, in a stooping position; Flynn was seen by various witnesses to walk away. He gave no warning of the oncoming steam train. The court left it to the jury to say whether it was negligent for the decedent to rely upon Flynn to keep a lookout and give warning. It seems to us that this was proper enough and that no error was made in submitting this question to the jury.

We see no reason why we should disturb the finding of the jury on the facts, nor do we find any rulings of law which seem to me erroneous.

The judgment and order should be affirmed, with costs.

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

Judgment and order unanimously affirmed, with costs.  