
    Bridget Sheridan, as Administratrix, etc., of Matthew Cooney, Deceased, Respondent, v. Interborough Rapid Transit Company and the Joyce Trucking Company, Appellants.
    
      Negligence — death of an employee of an élemtéd railroad company; sitting on a scaffold suspended-under its structure, from a'collision with a truck passing under it — negligence of men employed by the 'company to-warn approaching trueles—rnegligence of. the railroad company and of the trucking company — contributory . ■ negligence of the killed employee — additional allowance, sustained in the absence '■ of an exception.
    
    In an action, brought against a railroad’ company and a trucking company to recover damages’resulting, from the-death of the plaintiff’s intestate, it appeared ' that for. the use of its workmen- in repairing the elevated railroad -structure located on Sixth avenue, in the city of New’ York, a scaffold had been suspended from the elevated structure, the bottom of which scaffold was about thirteen feet and five inches abpve the street and about two feet below the . elevated structure; that there was sufficient room beneath the scaffold to afford an unobstructed passage to the ordinary traffic of the street, and that the only danger of a collision with the scaffold was from a truck loaded to an unusual height; that, to prevent such an occurrence, the railroad company, employed two watchmen to warn-such trucks; that -on the occasion in question the driver of one of the-trucks of the defendant -trucking company, disregarding, as the evidence tended to show, the warnings .given-by the watchmen, drove under .and collided with the scaffold,, throwing the plaintiff’s intestate, who was at work on the scaffold, into the street and causing him to sustain injuries from which he died. . •
    It further appeared that the driver of the truck .had plenty of room to' drive on either side of the elevated railroad structure; that the scaffold was .of the kind ordinarily used in making repairs to the elevated structure, and no evidence was given that it was not properly constructed or was' not sufficient to protect the men at work thereon if not interfered With by passing trucks. - ,
    Upon an. appeal from a judgment entered upon a verdict against both defend- ’ ants,.it was
    
      Held, that the evidence Was not sufficient to sustain a finding of negligence on the part-of the railroad company;,
    That even assuming that, on the Occasion of the accident, the watchmen sta\ tioned by'the railrqad company had negligently failed to perform their duty, such negligence was the negligence óf the intestate’s fellow-servants, for which the railroad company was not responsible;
    That.the fact that evidence was given tending to show that on the occasion of the accidenta bolt hung down a few inches below the floor of the scaffold was not material on the question of the railroad company’s negligence;
    
      That the question whether the defendant trucking company was guilty of negligence was properly submitted to the jury, and that their finding thereon was sustained by the evidence;
    That the fact that the intestate was the only one of the men at work upon the scaffold who was knocked therefrom at the time of the collision did not establish that he was guilty of contributory negligence;
    That the Appellate Division will not, in .the absence of an exception, interfere with the action of the judge presiding at the trial of a negligence action in granting an extra allowance of costs to a successful plaintiff.
    Appeal by the defendants, the Interborough Rapid Transit Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 2d day of May, 1904, upon the verdict of a jury for $9,000, and also an appeal by each defendant from an order denying such .defendants’ motion for a new trial made upon the minutes, which orders were entered in said clerk’s office on the 2d day of May, 1904, and the 29th day of April, 1904, respectively.
    
      Henry W. Taft, for the appellant Interborough Rapid Transit Company.
    
      Bertrand L. Pettigrew, for the appellant Joyce -Trucking Company.
    
      Charles Pope Caldwell, for the respondent.
   Ingraham, J.:

This-action was brought to recover damages for the death of the plaintiff’s intestate, the allegation being that his death was caused by the joint negligence of the defendants. The jury found a verdict for $9,000 against both defendants jointly, and both defendants have appealed from the judgment entered thereon and from an order denying the defendants’ several motions for -a new trial. The plaintiff’s intestate was in the employ of the railroad company, engaged in repairing the structure of the railroad company on Sixth avenue between Thirty-ninth and Fortieth streets, in the city of New York. A scaffold had been suspended from the structure for the use of the workmen, and the plaintiff’s intestate was drilling holes in the iron beams or girders of the. structure. A truck belonging to the defendant, the trucking company, driving along Sixth avenue under the structure, collided, with the scaffold upon which the deceased was at work, throwing -him to the street and causing injuries which resulted in his death,- and the accident was the direct result of the collision with the truck. The lowest part of- the elevated structure was fifteen feet and'five inches above the pavement and the scaffold or staging was but about two feet below the structure. The scaffold was built so that the surface cars pould pass beneath it, and the evidence is that these cars were about ten feet and nine inches in height. To protect the men at Work on these scaffolds, the railroad company employed two watchmen, who were instructed to warn vehicles of sufficient height to interfere with the scaffolds, when passing undei; them, and there was evidence that on i the day of the accident both of these watchmen were on duty. The truck was moving in a southerly direction, and one of the watchmen testified that he saw the truck approaching and shouted to it to stop, but that the driver disregarded .the warning, drove on and collided with the scaffold. .The driver of the truck and other employees of the trucking company upon the truck testified that they heard no such warning. There is no evidence that these scaffolds were not entirely safe so long as they were not interfered with. They were the kind in use when repairs were being made .to the elevated railroad structure, and at this -time there were several scaffolds of the same kind in use in this locality. There was evidence tending to show that at the time of this accident a bolt extended down from the scaffold some distance below its floor.

At the end of the plaintiff’s ease each of the defendants moved to dismiss the complaint; tlie railroad company upon the ground that there was not shown to be any negligence on the part of the railroad company; that no act of the railroad company was- the approximate cause of the accident, but that the approximate cause appeared to be the negligence of the driver of' the truck coming in contact with this structure. These motions were denied, each of the. defendants taking an exception. Testimony was then introduced by both of the defendants, and at the end of all the evidence these motions were again renewed and were denied. The court submitted the question to the jury, who found a joint verdict against, both defendants.

1 do not think the evidence was sufficient to - justify a finding of negligence against the railroad company. There is no evidence that the scaffold was not properly constructed and was not sufficient to protect the men working upon it so long as it was not interfered with by trucks upon the street. Such a scaffold was necessary to repair, the elevated railroad structure. The railroad company was bound to furnish its employees with a reasonably safe place to work; but it was.certain that there would be a collision if a vehicle of sufficient height to strike the scaffold attempted to drive under it. There was no way of avoiding such a collision except for the railroad company to employ watchmen upon the street to warn vehicles against interfering with the structure. The evidence is that the railroad company did employ watchmen on the street, and the preponderance of evidence is that these watchmen were on duty at the time of the collision. Assuming that in this instance the watchmen failed to perform their duty, the railroad company performed its duty by providing watchmen charged with the duty of protecting its employees so far as possible, and if the watchmen were negligent, it was the negligence of fellow-servants, for which the railroad company is not responsible.

Whether or not a bolt hung down a few inches below, the .scaffold, 1 do not consider at all material, as from the undisputed testimony and the situation itself it is apparent that there was plenty of room underneath the scaffold as constructed for the ordinary use of the street, and that the only, danger was from a truck loaded to an unusual height; and to prevent such a truck from driving under the structure the railroad company adopted the only means that it could by the employment of competent watchmen to warn such, trucks against driving under the scaffold.

I think, however, that the question as to the negligence of the trucking company was properly submitted to the jury. The driver of this truck was aware of the fact that the scaffolds Were suspended from the elevated railroad structure. He had plenty of room to drive on either side of the structure. He chose to drive down upon the tracks of the surface cars under the structure, and the accident was directly caused by a collision between this loaded truck and this scaffold. The use of the scaffold by the railroad company was lawful. The company had the right to take the necessary measures to repair the structure and in pursuance of that right they had constructed these scaffolds, and their men were upon them at work. Whether the accident was caused by striking a. bolt which extended below the scaffold, or by striking the scaffold itself, the trucking company had no right to drive its trucks In such close- . proximity to the scaffold-as. to endanger-the lives of those upon it, when there wafe plenty of room on either side .of the street where the truck could have been driven. Whether or not under such circumstances it was a prudent act to drive the truck under these scaffolds was, I think, a question for the jury, and their finding that the trucking company was negligent is sustained by the evidence.

There was no evidence to show that the -deceased was guilty of contributory negligence. lie was sitting upon this scaffold, which was'about two feet below the structure, and " at the time of the accident was engaged in drilling a hale in one of the iron beams on which it was placed. A fellow-workman who was upon the scaffold and saw the danger of the collision and who gave a shout of warning caught hold of the structure and so saved himself from being thrown-to the street. Whether the deceased thus attempted to save himself does not appear; but from the evidence this warning seems to have been almost contemporaneous with the collision, and whether the-' deceased canght hold of a part of the strúctüre and his hand slipped or the collision was of sufficiént force to break his. hold is not disclosed.; -but- the evidence is that he was knocked off the scaffold-by the force of the collision, and the fact that-other men succeeded in saving tliemselyes was not, as a matter of law, evidence that the deceased was. guilty of contributory negligence: There was no exception to the charge and the only Question of evidence relied upon by the trucking company is as to the admission of certain évidence by the railroad company which had relation to its .acts, and had no bearing upon the -negligence of the trucking company.

. My conclusion, therefore, is that there was no" evidence that the railroad company was guilty of negligence and that the judgment and order as against it should be reversed and a-new trial ordered, with costs to the appellant to abide the event; that the case as , against the trucking company was properly submitted to the jury, and that there was no error which would justify a reversal of the judgment. It follows that the judgment and order as against the ¡trucking company must bé affirmed. •

• The court granted an extra allowance -of five per -cent upon- the amount of the verdict, but no exception was taken to this allowance by either of the defendants, and in thé absence of an exception, we are not disposed to interfere with the action- of the court below in granting the extra allowance.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred.

As against the railroad company, judgment reversed, new trial ordered, costs to appellant to abide event ; and as against the trucking company, judgment and order affirmed, with costs.  