
    Samuel Cloke, an Infant, by William H. Cloke, His Guardian ad Litem, Respondent, v. The Pittsburg Contracting Company, Appellant.
    Second Department,
    February 21, 1913.
    Master and servant—negligence — injury to coal boy by locomotive crane — evidence — contributory negligence.
    In an action under the Employers’ Liability Act to recover for personal injuries to a minor employed by the defendant as a night coal boy to carry coal from a box located about four feet from the defendant’s tracks, it appeared that the plaintiff’s leg was injured by the defendant’s locomotive crane, which the plaintiff claims was run without light or signal. The evidence was conflicting as to whether the plaintiff was engaged in picking up coal at thu time he was injured or whether he was asleep between the track and the coal box. He had been employed by the defendant for two months, was familiar with the relative location of the coal box and the track, and had been warned by the defendant that he must be watchful for passing cranes and cars.
    Evidence examined, and held, to establish the contributory negligence of the plaintiff.
    Hirschberg, J., dissented.
    Appeal by the defendant, The Pittsburg Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 19th day of April, 1912, upon the verdict of a jury for $11,000, and also from an order entered in said clerk’s office on the 2d day of Hay, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Ambrose Goodwin, for the appellant.
    
      Don R. Almy [Harrison M. Haverbeck with him on the brief], for the respondent.
   Jenks, P. J.:

The action for negligence is brought under the Employers’ ■Liability Act, as amended by chapter 352 of the Laws of 1910.

I am not clear that the proof sufficed to justify a finding of negligence. But my advice to my associates does not require a determination of that question, and in view of a new trial I think it unwise to indicate my opinion as to the shortcomings in the proof of negligence. For though the counsel be as reputable as is he who argues this appeal for the respondent, and none is more so, the practice of pointing out the defects of proof upon an issue which is not necessarily discussed in a determination by an appellate court, may be, and I fear often is, an invitation and a temptation to witnesses to supply the defects, beyond the truth as they know it, upon the new trial. This is a general reflection without intention of specific application to the case at bar.

I think that the judgment should not stand because the -verdict is contrary to the evidence upon the issue of contributory negligence pleaded by the defendant. The defendant maintained and worked a railway incidental to its labor upon an aqueduct, in order to move its cranes and cars from time to time. The plaintiff, If years old, had served for two months in the night as a coal hoy, carrying coal from a coal box constructed near these tracks. About 3:30 A. M. of June 2f, 1911, the wheels of a moving car, bearing a crane, ran over his left leg and severed his foot. The negligence charged is the running of the locomotive crane without light or signal, improper location and maintenance of the coal box, and failure to furnish a safe place to work. The notice served by the plaintiff charges also that the coal box was inadequate, worn out and out of repair, in that it had given way, scattering coal over the ground, so that the plaintiff was obliged to go upon the tracks to get the coal.

There is no doubt that previous to the accident the plaintiff took a position which brought his left leg over the nearer rail of the track. At first he avowed ignorance whether this was the fact, but after he was pressed he answered the court itself, “It must have been.” There is no proof that his master’s business required or justified such an attitude. The engineer’s plan of the locality, read in evidence without criticism, shows that the opening of the coal box was 4.14 feet distant from the rail. This is more reliable than the mere estimates of the plaintiff’s witnesses, which made the space somewhat less. The plaintiff testifies that at the time of the accident he was picking up coal—“I was picking up coal alongside the railroad track.” But there is no proof that he was ordered to do this, and no proof that he had any reason to suppose that he should do this in the discharge of his duty. He himself testifies that he was directed to get the coal out of the coal hox, and that on the night in question the hox was full. Indeed, his witness Fox testifies that while there was a little coal in front of the box there was none between the edge of the box and the track. But if he was picking up coal alongside the railroad track, why should he, when about that work, have been lying down, as he testifies, with his right foot under him and one foot sticking out not straight, but extended over the rail? He surely was not required to take such a position. But on cross-examination he says that he was starting to pick up coal; that he had not picked up any, but was looking for lumps of coal to put in his bag; that he had to dig down to get them, and that he was digging in the coal box right opposite the rail. It is not easy to picture the attitude of a person digging in the coal box while lying down with his right foot under him, with his left leg sticking out but not straight, so that it extended over the rail 4.14 feet distant. But even if this attitude was assumed, there is not the slightest proof that it was necessary or justifiable. It may be noted also that his witness Fox testifies that he did not have to dig down that night to get large lumps of coal, for they were on top.

It is hard to believe that the plaintiff was not conscious that his foot lay across the rail. If he had thrust out his leg along the ground it would naturally have encountered the rail. If he had raised up his leg to bring it down to rest it would seem he must have felt that it rested upon the rail and not the ground. He knew perfectly well the relative location of coal box and of track. He testifies that he had been warned by his employer that he must be watchful for passing cranes and cars, and that on that very night he knew that it was “a dangerous position.” He had seen the cranes that night. He knew that they were moved in the night, sometimes bearing lights and sometimes not bearing them. The crane that caused his accident itself was going very slowly, according to the testimony of Bayes, the engineer, who was called as a witness for the plaintiff.

The plaintiff is not supported by any witness as to his own conduct. And his testimony is not to be considered merely by the criterion of its credibility. The defendant called Simpson, the fireman on the crane, who testified that he saw “something white,” and when he saw that the “something” was the plaintiff, the witness jumped from the crane and took him up. He testifies that the door of the fire box was open, and that he saw the plaintiff lying on his side, with one foot oyer the track. He testifies that after he took the plaintiff up the plaintiff did not know he was hurt, but was crying, and said, “ Don’t tell Bill Grriff [the name of the foreman] I was asleep or he’ll fire me.” Dr. Emery, the physician in charge of the defendant’s hospital, testifies that when the plaintiff came to the hospital that night he asked the plaintiff how the accident happened, and the plaintiff answered that “ he went to sleep alongside of the coal box. ” Emma Rowell, the owner and proprietor of a sanitarium to which the plaintiff was brought directly after the accident, testifies that she asked him how it had happened and he said that he had been suffering from diarrhoea for a couple of days, one of his fellows had given to him blackberry brandy, which he was not accustomed to take, that it made him feel dizzy so he wanted to get somewhere where he could lie down and go to sleep; that he went where there was a bank of coal and laid up against it; that his foot was not out of the way of the track and that there was a dummy engine or something of that kind, which the witness did not quite understand, which cut off his foot while he was sleeping.

It is quite true, as urged by the learned counsel for the appellant, that contributory negligence was a defense to be both pleaded and proved by the defendant (Greif v. Buffalo, L. & R. R. Co., 205 N. Y. 249), and that, therefore, the burden upon that issue was upon the defendant; but I think that the defendant upheld that burden, and, therefore, I advise reversal of the judgment and of the order and the granting of a new trial, costs to abide the event.

Thomas, Carr and Rich, JJ., concurred; Hirschberg, J., dissented.

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