
    Julia Grathwohl, as Administratrix, etc., of Joseph H. Klippel, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    December 7, 1906.
    Negligence — employee of independent contractor injured on elevated railroad tracks — when signals unnecessary— contributory negligence.
    In an action against a railroad company to recover for the. death of an employee of a company engaged in installing signals upon the elevated structures of the railroad compan3r, who crossed directly in front of a north-bound train oh the track farthest west and was struck by a north-bound engine on the next track, the plaintiff has failed to establish the negligence of the railroad company where there is no evidence that the employees of the signal company were required or were accustomed to go upon the tracks or that the railroad company or its employees knew they were working in this place on the day of the accident, and where it appears that the structure was used exclusively for trains and that there were passageways where workmen could stand while trains were passing. '
    <V recovery cannot be based on the failure of the approaching engine to give signals, for the rule requiring signals at crossings or in railroad yards does not apply to the main tracks of a railroad of this character.
    iVhere it appears that the intestate knew the situation and the manner of running the trains; that the day was clear and the view unobstructed and that he looked toward the approaching train before crossing the- tracks, the plaintiff has failed to establish freedom from contributory negligence, for the proximate cause of the accident was the negligence of the intestate in crossing in front of the train instead of waiting until it passed. Since he saw the approaching train he was aware of the danger and a signal from the second engine could not have given him any further warning.
    Patterson and Houghton, JJ., dissented, with opinion.
    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 New York on the 12th day of January, 1906, upon the verdict of a jury for $1,800, and also from an order, as resettled, entered in said clerk’s office on the 16th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert A. Kutschbock, for the appellant.
    
      Frederick A. Kuntzsch, for the respondent.
   Ingraham, J.:

' The tracks of the defendant from the Harlem river to the One Hundred and Twenty-fifth street depot are upon an elevated structure over Fourth avenue. The tracks cross the Harlem river on a bridge and then proceed on this structure to the depot. This structure is used exclusively for railroad purposes and upon it there are four tracks. The two westerly tracks are used for trains going from the depot and the two.easterly tracks going to the depot. The yards of the railroad company.are located north of the river. _ The tracks are used ■ both for trains carrying passengers from the depot and for locomotives going to and from the railroad yards to the- depot. The two westerly’ tracks are known respectively as tracks 3 and '4, Ho.' ,4 being the westerly track, and Ho. 3 being the track to the east. About two months prior to February 6, 1903, a corporation known as The Pneumatic Signal Company was doing some '.work under a contract with defendant in relation - to automatic signals upon this elevated railroad structure. On February 6,190,3, two employees of the signal company seemed to have been at work on this structure adjusting the signals. ■ One Heafy was in charge ’ of the work, assisted by plaintiff’s intestate. Trains were constantly passing and repassing on the- tracks. Heafy had been at work for two months upon this structure and upon the bridge crossing the river,'and plaintiff’s intestate had been assisting. Heafy for several days. On this morning Heafy wanted to ascertain the drop of a signal upon a pole, and he told the «plaintiff’s intestate to go to the switch and center the lever. This switch was located just south of. the drawbridge, and in order to get to it the plaintiff’s intestate had to cross the tracks. On each side of this structure and alongside the tracks there was a passageway so that those engaged in working upon the tracks could allow trains to pass. ' Heafy, upon • giving this order, climbed up on the top of á pole. The plaintiff’s intestate started for the switch house to obey the instructions that he had received. As he started a train drawn by a locomotive was proceeding north on the westerly track'(Ho. 4), and there was also a detached locomotive proceeding north upon track Ho. 3. A witness who was sitting'in the window-of a house on Fourth avenue overlooking the structure testified that she saw the plaintiff’s intestate look up and down the road and start to. cross the tracks; that when he started the train on the westerly track was approaching and he crossed in front of it. Apparently he crossed that track in safety, but was .struck by the engine upon track Ho, 3"and received injuries which .resulted in his death.

■ This accident happened just after nine o’clock in the morning, a _dear*day with nothing' to obstruct the view of the tracks except that it is possible that "the approaching train concealed the locomo-' five on track Ho. 3. These men were not. working upon the tracks - nor were they employees of the defendant, but so far as appears their work did not require them to go upon the track, and while attending to their work they were in a position of safety. I cannot find that there is any evidence that the men were accustomed to cross the tracks, or that any of the employees of the defendant had notice of the fact that these men, working at these automatic signals, were at any time required to be upon the track. The only claim of "negligence on the part of the defendant is based upon a failure to give notice of the approach of the train of locomotive; but the train on track Eo. 4 was in plain sight and the evidence is that the plaintiff’s intestate looked towards it and he must, therefore, have seen it. So, that the failure of the defendant to give warning of the approach of the train was not, in any sense, the proximate cause of the injury. The place at which these men were at work was not a depot or crossing, or a pla.ce at which there were men constantly at work to the knowledge .of the defendant or its employees, but an elevated structure upon which trains were passing, used exclusively for the trains, and there is nothing to show that the defendant or any of its employees had any notice that these particular men were at work on this morning or that their woflc required them to be upon the tracks or in such a position that they could be injured by the trains. The men understood the situation and knew that trains were constantly passing and that at any time a train was liable to pass upon either dr all of the tracks.

Upon this evidence I do not think the jury was justified in finding the defendant guilty of negligence or the plaintiff’s intestate free from contributory negligence. 1 do not think that the cases relied on by the plaintiff, the latest of which is Loomis v. Lake Shore & M. S. R. Co. (182 N. Y. 380) applies to this particular situation. The question is whether there was any duty upon the employees of the defendant to give notice of the approach of each train that passed over those tracks at this locality. In the Loomis Case (supra), the accident happened upon the tracks in the yard of the defendant in the city of Buffalo. The tracks of the defendant ran east and west through the yard, where there were a number of parallel tracks used, for storing cars. About seven o’clock in the morning, a clear July day, a freight train on which the plaintiff’s intestate was a workman was standing on one of the main tracks of the road. The deceased was walking towards the end of this train between the east and - west-bound tracks and before he reached, the end of the .train he was struck by the rear of the tender of a passenger engine. It was proved that this locomotive was being run in violation of the rules of the defendant road,' and was hacking over a public highway through a yard without any employee in a situation where he could see those that were on the- track over which the locomotive was proceeding. In -this yard the employees of other roads were working, and the locomotive, without warning or notice, backed through it, and. in violation of the rules of tlie company. It was a place of danger, and the situation there required some precaution by the employees of the defendant in backing the' engine to avoid injuring those upon the tracks engaged in the performance of their duties in the yard. The fact that the defendant had made rules regulating the use of its locomotives and trains-through this yard, which - required .that no train must he backed unless there was a man on the rear car to see if the crossing was clear, which rule was violated, was some evidence of negligence on the part of those in charge -'of the locomotive which caused the injury. The rule that required the railroad company in operating its trains or locomotives in a railroad yard or over a public crossing, or other like places, to -give notice of the approach of trains or locomotives, or to take some measures for the protection of those exposed to the danger of being run over, does not apply to the main track of a railroad of this character over which trains are constantly passing, There is no evidence tó show that the defendant or its employees had notice that the- plaintiff’s intestate and Heafy were working alongside .of the track on this particular morning. Certainly, the engineer of this locomotive proceeding on ■ the middle track could not anticipate that any one would pass immediately in front of the locomotive of the train on track 4, or that’the situation required that he should- give a signal. But I cannot see that the lack of warning was at all the proximate cause of the accident. The deceased knew of tire situation ; knew that trains were constantly passing and repassing at this point. If he looked toward the approaching train he must have seen it. Whether he also saw the engine coming on the third track -we do not know, but he saw all that a bell or other warning would have told. him.

E"or do I think that there was evidence to show that the deceased was free from contributory negligence. He had full knowledge of the situation. It was a bright day,, with nothing to obstruct his view. He was required to cross the tracks upon which trains were constantly passing. He must have' seen a train approaching and crossed directly in front of it. There ivas nothing that required him to cross in front of the approaching train instead of waiting until it had passed. It was essentially a dangerous act, and the accident was directly caused by attempting to cross as he did without waiting for the train to pass. '.

I think, therefore, that the verdict that the defendant was guilty of negligence or that the plaintiff’s intestate was free from contributory negligence was not sustained by the evidence, and it follows that the judgment and-order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Laughlin and Clarke, JJ., concurred; Patterson and Houghton, JJ., dissented.

Patterson, J. (dissenting):

I do not concur in the opinion of the majority of the court reversing the judgment and order appealed from. The plaintiff’s intestate was not a servant- of the defendant Corporation, but of a contractor with that corporation to do certain work in repairing the system of signals on the defendant’s roadway near the bridge over the Harlem Eiver. The decedent had been engaged in that work under the direction of a foreman of the contractor and for a sufficient time to enable the defendant’s officers and employees to have knowledge of that fact. He was working at a dangerous place on the roadway. Two hundred and seventy trains passed daily the point at which he was working, which was near the westerly or fourth track. It is admitted that he was killed either by a train proceeding northward on that track or by a locomotive proceeding in the same direction on the third track; and as the evidence shows that he had passed beyond the fourth track in safety, he must have been killed by the locomotive moving on the third track, and which was concealed from observation when he started to cross from the west to the east. The locomotive was running at the rate of thirty-five miles an hour. A bell was not rung nor was a whistle soundéd. There was a curve in the line of railway just to the south of the point at,which the intestate started to cross the • tracks and it is apparent that the position of the train on the fourth track prevented his seeing the locomotive on the third track. In such circumstances, it was the duty of the defendant to give to those who were working on or near the tracks, some notice of danger from approaching trains, in order that they might escape that .danger. (Loomis v. Lake Shore & M. S. R. Co., 182 N. Y. 380; Sullivan v. Tioga R. R. Co., 44 Hun, 304; affd., 112 N. Y. 643; Conlan v. N. Y. C. & H. R. R. R. Co., 74 Hun, 115; affd., 148 N. Y. 748; Dempsey v. N. Y. C. & H. R. R. R. Co., 81 Hun, 156 ; Wells v. Brooklyn Heights R. R. Co., 67 App. Div. 212.)

I think there was evidence to go to the jury sufficient to show that the defendant failed in its'duty to protect plaintiff’s intestate while he was engaged in working at appliances upon its roadway used in the operation of the road. The subject of contributory negligence was also one for the jury. We may assume that the plaintiff’s intestate had been working at or about the point at which he was killed for a sufficient length of time to enable him to know that certain dangers surrounded him, and it was undoubtedly his duty to be vigilant and careful and to do everything that a prudent and reasonable person would do to protect himself from Injury. . It is true that he crossed the fourth track only ten or twelve feet in front of the train proceeding on that track. There is no reason to doubt that it was necessary for him to cross the fourth and the third tradks in order to get to the place to which he had been sept by Heafy to test the signal switches. The evidence is that before he started .to cross the tracks he looked south and doubtless he saw the approaching train, but there is nothing in the evidence to indicate that lie could have seen the locomotive on the third track; nor is there . ' , I anything to show that he could or should have anticipated the presence of that locomotive running -side by side with the train in the same direction. The case differs radically from Keeler v. N. Y. C. & H. R. R. R. Co. (114 App. Div. 807), which was an actibn similar to this. There, an employee of the contractor .working on the elevated signal system was killed on the same viaduct by a train of the New York, Hew Haven and Hartford Bailroad Company, but in such circumstances as induced the court to hold that he was guilty of contributory negligence as matter of law, and the facts-proven fully justified that conclusion.

I think it was for the jury, in this case, to say whether the plaintiff's intestate did anything or omitted to do anything which could • be regarded as negligence on his part. The case went to them on a very satisfactory and sufficient charge, and the judgment and order should be affirmed.

Houghton, J., concurred. , •

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.  