
    Max F. Utess, Respondent, v. Erie Railroad Company, Appellant.
    Fourth Department,
    March 3, 1909.
    Railroad—negligence — injury to flagman in terminal station— safe place to work.
    Action against a railroad not brought under the Employers’ Liability Act, but at common law, to recover damages for personal injuries. The plaintiff had been employed by the defendant for many years and at the time was acting as a switchman in a terminal station with which he was familiar, it being his duty to flag incoming trains to proceed when the tracks were clear. He was at liberty within reasonable limits to select the place from which to flag- the train, and at the time of the injury, it being broad daylight, stationed himself near some rails and two piles of earth at the side of the track, which were to be used in electrifying the road at that point. As a train which he had signaled to proceed passed him, he was struck with a lump of coal falling from the tender and, being dazed, stumbled over the pile of earth and was struck by the train. On all the evidence,
    
      Held, that it was error to allow the jury to say whether the defendant was negligent in failing to furnish a safe place to work by reason of the presence of the rails and earth.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of July, 1908, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 25th day of September, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 5th day of July, 1907, to recover damages for injuries sustained by the plaintiff alleged to have been caused solely through the negligence of the defendant.
    
      Adelbert Moot and Helen Z. M. Rodgers, for the appellant.
    
      P. Chamberlain, for the respondent.
   McLennan, P. J.:

The material facts are not in disputo, The accident which is the subject of this action occurred on the 3d day of November, 1906, at about eight-forty A. m., in the yard or terminal of the defendant, situate in the city of Rochester, H. Y., extending north and south, parallel with and adjacent to the Genesee river. The plaintiff, who at the time was thirty-three years of age, had been in defendant’s employ for about twenty-one years. He began as water boy and successively was employed as trackman, construction foreman, sectionman, yard foreman, brakem'an and switchman. During all of such time his place of employment was on the Rochester division of the defendant, which extends from Rochester to Corning, or in its yard or terminal in the city of Rochester, and, therefore, he was familiar with its physical situation and with the manner in which the business of the defendant was conducted therein. At the time of the accident the plaintiff was employed as switchman in the yard, and it was a part of his duty to flag trains coming into it and to indicate to the engineers of such trains when they could safely take the track leading to the station, and in the performance of such duty it was necessary for the plaintiff to go to a point in the yard at such distance from the station as would enable the engineer of an incoming train upon getting such signal to stop and so avoid coming in collision with any train which might be at the station. The plaintiff was not required to stand at any particular distance from the station. He was at liberty to select such place as he saw fit, within reasonable limits, except that it was necessary for him to be on the right-hand side of the train in order that his flag could be readily seen by the engineer.

It appears that at the place selected by the plaintiff (he might have selected any other place within a reasonable distance in either direction) at which to stand while flagging the train in question, there was only a distance of aboiit seven feet from the outside rail of the track on which a passenger train was approaching from the south and the bank of the Genesee river, and that at such place there were some railroad rails piled between the track and the river and parallel with the tracks and also a couple of piles of earth, about two wheelbarrow loads in each, which had been left or made by defendant’s employees when engaged in electrifying or preparing to electrify its road at that point. The plaintiff stood about four feet from, the track upon which the train was approaching. He signaled the engineer to stop, because another train was occupying the track at the station. The engineer slowed down his train a little when the plaintiff discovered that the train at the station had ■ taken the siding and that the track was clear. He then signaled the engineer to proceed,, which he did in the usual manner, going at the rate of twenty-five to thirty miles per hour. As the tender passed the plaintiff he discovered some lumps of coal falling from it and one piece struck him in the face with such force as to daze him. He staggered backward and, in attempting to regain his footing, stumbled over the piles of dirt or rails, and in some manner came in contact with one of the moving cars, which struck him upon the shoulder. He was thrown down, his arm was crushed in such manner as to make amputation necessary and he sustained other very serious injuries.

The plaintiff, who was the only witness called who saw the acci- . dent, testified upon his direct examination as follows: “ Q. Did you notice anything in regard to the condition of that tender upon the train as it came in ? A. Hot until I saw some coal rolling off of it. Q. What did you notice in that regard ? A. As the front end of the engine got to me, I gave the engineer a cross-over signal, and of course the train was coming right along, and about to me, and after I gave the engineer the cross-over signal I noticed some coal coming off from the tank. Q. The tender that is attached to the engine? A. Yes; and I partly turned-my back toward the engine trying to avoid the coal, and as I did so I just about got my back turned toward the engine and I got struck with a piece of it on the side of the face, which dazed me, and I started to tumble down this bank. At that time I began staggering around and there was a couple of piles of dirt laid there. . I should judge a couple of wheelbarrow loads in a pile, where they had been setting up electric poles, and mixing the concrete, and I staggered around on one of those piles of dirt, and the next thing I knew, I got struck on the left shoulder, and that is as far as I can tell anything about it. Q. Describe to the jury the condition of that tank as you observed it when you saw the coal falling off, the' condition of the coal on the tank ? A. It would be rather a hard matter to say, although as this coal rolled off, it all happened so quick it didn’t give me much time to look the tank over, although as the coal rolled off I saw these pieces rolling off of the top of the tank, and whether the. piece that struck me came off from the top of the tank or out of the gangway, it was impossible to say. The tank was full, as near as I could see, what I-could see of it during that instant. The next I knew anything to remember anything, I was up at the hospital.”

The witness on cross-examination states that he did not know who had left the piles of dirt or the pile of rails upon the defendant’s right of way; that he did not know whether it was done by a telephone line, by a telegraph line or the railroad line, and also upon cross-examination he says: “As to this piece (of coal) that hit me I couldn’t tell really whether it came from the top of the tender or from the gangway.” And again on redirect examination the witness says: “The others (pieces of coal) that I dodged came from the car* This was almost instantaneous. I couldn’t say whether it was coming from the gangway or the top of the tender.”

Other witnesses called by the plaintiff testify that the tender was chuck full of coal; that the coal lay all over the top of the. tank on the river bank side five or six inches over the top of the board at the side. One witness called by the plaintiff testified on cross-examination that all the tenders come down there chuck full of coal-and that this one was just like the rest; that there was no • difference in the way this tender was loaded from the way tenders are loaded generally; that the one in question was like all the rest.

The foregoing is practically all the evidence which has any bearing upon the question of defendant’s negligence. The court expressly held that the action was not brought under the Employers’ Liability Act; therefore, no rights accrued to the plaintiff by virtue of its provisions. Indeed, the only allegation of negligence contained in the complaint is “ That on and prior to the 3d day of November, 1906, the defendant had unlawfully, carelessly and negligently allowed to be placed and to accumulate in its railroad yards aforesaid at Bochester, N. Y., piles of railroad rails and dirt which blocked up the ways and means necessary to be used by tlié plaintiff in. the performance of his work as a switchman and flagman aforesaid, and * * * that the tender, so called, attached to said engine had been overloaded with coal by the defendant to be used in connection with the operation of said engine attached to said train of cars.” There is no allegation to the effect that the plaintiff did not have full knowledge of the alleged obstructions existing at the place which he selected from which to flag the incoming train, or that he did not have in mind the exact situation at the tihie of and immediately prior to the accident. It was broad daylight. The defects or dangers, if any, were not latent, but were obvious and in plain sight. At the time the place was selected (and such place was selected by him in his discretion) any other place in that immediate vicinity would have answered his purpose just as well.

The evidence, we think, conclusively establishes that the plaintiff assumed whatever risk or danger resulted from the obstructions referred to, and, therefore, we conclude that in so far as it is sought to charge the defendant with liability because of negligence in permitting the piles of railroad rails and of dirt to be upon its right of way, the plaintiff has failed to establish a cause. of action, because he assumed the risk incident to or resulting from the condition which is described in the evidence, when we remember that he can obtain no aid from the Employers’ Liability Act. A servant assumes not only tlié risk incident to his employment but obvious dangers, and so if he voluntarily enters into or continues in the service, having knowledge or means of knowing the dangers involved, he assumes the risk. (Crown v. Orr, 140 N. Y. 450; Kennedy v. Manhattan R. Co., 145 id. 288; Huda v. American Glucose Co., 154 id. 474.)

As to the other charge of negligence, to wit, that the coal, which fell from the tender and struck the plaintiff and which may be regarded as the proximate cause of the injury, was improperly and negligently loaded into or upon such tender. There is not a scintilla of evidence to indicate by whom such coal was loaded, or whether it was loaded at Corning or Avon, or at some other point on the Eocliester division of defendant’s railroad. There is no suggestion in the evidence that the engineer, who was in physical control or direction of the engine, had any duty to perform in respect to loading such coal, or as to inspecting the same after the loading was completed. There is not a suggestion, based upon the evidence in the case, that the engineer did not discharge every duty imposed upon him in a prudent and caref ul manner. So that the Barnes Act, so called, being chapter 657 of the Laws of 1906 (adding to Railroad Law [Laws of 1890, chap. 565], § 42a), can have no bearing upon the issue of defendant’s negligence in respect to the loading of the coal. So far as this case is concerned, there is no evidence to indicate that the vice-principal (the engineer) was negligent in any manner. While the Barnes Act, so called, declares in substance that if a person is injured while in the employment of a railroad corporation'because of the-negligence of an engineer while in physical control of-a locomotive engine, and also because of the negligence of many other jDersons named in the act who are declared to be vice-principals^ the corporation is liable, it is necessary that the evidence should point out. such vice-principal and establish that he was guilty of the negligence which caused, the injury* Otherwise no advantage can result to a-plaintiff from the provisions of the act. Having failed to make such proof in this case, the plaintiff must stand upon his common-law rights, and so- it is hardly necessary to suggest that if the coal was-improperly loaded into the tender, such improper loading was the negligence of a co-employee with the plaintiff and for which the defendant is not liable.

There is no doubt as to the theory upon which this case was tried and submitted to the jury, as a single paragraph taken from the charge of the learned trial court fully illustrates. The Court said : He (the plaintiff) must show to your satisfaction, by a fair preponderance of the evidence, that, the defendant was negligent, that is, that it did not properly load that tender; that it did not furnish him.with a reasonably.safe place to work; that it did not exercise due care in the loading, and operating of that engine. If you shall find from this evidence that the defendant did exercise due care in that regard, if you shall find that it was in no way negligent iu the manner in which it operated' that , train and loaded the tender, and in the place that it furnished for this man to work, then your verdict must be for the defendant.’.’ Counsel for the appellant upon all the evidence moved for the direction of a verdict in favor of the defendant and excepted to the submission by the court of the question of defendant’s negligence upon either ground to which attention has "been called.

We conclude that upon all the evidence there was,no question presented- which tended to establish actionable, negligence on . the part of the defendant, independent of the Employers’ Liability Act, which is not available to the plaintiff, and because the evidence wholly fails to make the provisions of the‘Barnes Act, so called, applicable.

We conclude, therefore, that the judgment, and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Spring, Williams, Kruse and Eobson, JJ., concurred in result, reversing the judgment and order and granting a new trial on the ground that the court erred in submitting to the jury as a ground of negligence the question of an unsafe place by reason óf the piles of railroad rails and dirt, and declining to charge' as requested by defendant on that subject, without passing upon the other questions raised.

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