
    Margaret Harrison, as Administratrix, etc., of Edward Kirby, Deceased, Appellant, v. New York Central and Hudson River Railroad Company, Respondent.
    Fourth Department,
    July 7, 1908.
    Railroad—negligence — death of brakeman caused by low bridge — defective “telltale”—when-negligence and contributory negligence • for jury.
    A brakeman required to work.on the roof of moving cars is justified in relying-upon “ telltales” maintained by the railroad to warn him of the nearness of a low bridge although he has been under the bridge fifteen times before.
    
      Where strands are missing from such “ telltale ” so that there is room for a brakeman to pass through the open space so caused, he is not as a matter of law guilty of contributory negligence in failing to observe a low bridge where he has duties to .perform which engross his attention. and his vision is partially obscured by smoke.
    Evidence in an action to, recover for the death of a brakeman examined, and held, sufficient to warrant a finding that the defendant was negligent in allowing a ‘ ‘ telltale ” to become out of order, and to j ustify a finding that the decedent, who was found upon the ground, had collided with the bridge.
    Hobson, J., dissented.
    Appeal by the plaintiff, Margaret Harrison, as administratrix, etc., from a judgment of the.Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of Onondaga on, the 3d day of June, 1907, upon an order entered in said clerk’s office on the 29tli day of May, 1907, granting- the defendant’s motion for a nonsuit, the jury having theretofore rendered a verdict for $6,500 in favor of the plaintiff, and also from the said order directing the entry of the judgment appealed from.
    The action is negligence and. the plaintiff’s intestate, in the employ of the defendant, was killed on the 29th of July, 1902, while going from Suspension Bridge to De Witt, on the Falls branch of ' the defendant’s road.
    A motion for nonsuit was made, and .the court reserved its decision, taking the verdict of the jury, which was favorable to the plaintiff, and thereafter the motion was granted.
    
      F. J. Cregg, for the appellant.
    
      Leroy B. Williams, for the respondent.
   Spring, J.:

The claim of the plaintiff is that Kirby, the intestate, was hit by a low, steel girder bridge a short distance west of Knowlesville, a station on defendant’s road, and the negligence charged is the omission to keep the telltales in condition to warn the intestate of the proximity of the bridge.

Kirby had been in the employ of the defendant as a brakeman about four months at the time of the accident, and had been under this bridge fifteen times before he was killed. The freight train on which he was employed left Suspension Bridge about eleven o’clock in the forenoon, reaching Medina about one-thirty in the afternoon. .He was last seen at this station climbing on the top of one of the cars composing the train. Knowlesville is about four miles east from Medina and the bridge, mentioned about one thousand feet west of tire former station, and the telltales about one hundred and fifty feet west of the bridge.

Kirby’s, body was found, shortly after the train had passed, about forty fee.t east of the bridge. Ho one saw the accident and the proof of the charge that he came in contact with the bridge depends upon circumstances and inferences. ■ When the body was found there was a deep broad cavity or bruise in the .back and side "of his head, as if it had been crushed by contact with some heavy solid object. The witness who found the body examined the lower westerly steel beam of the bridge over the center of the track and on its lowest side discovered a spot, lialf-moon shape, where the dust and soot had been knocked off, and the. impression was quite definite that something had recently come against the bridge at this point. •

There was also considerable proof, extending back from two weeks to .a month, as to the condition of these telltales. This, warning signal consisted of six.or eight strands of rope from four to six inches apart, and the evidence is that two or three of those originally in the center had become worn out or tangled up so that there was a clear space of from one to-two feet, and ample to permit the passage of Kirby’s head and shoulders without striking any of the remaining strands. The mark on the girder .was in line with the center of this signal and Kirby’s head, if he were standing on the running board, would have also been in line with this spot. From a mile or two west of Knowlesville to the station there is a down grade, and the engineer of this train-shut off the steam at this descent, causing the smoke to roll back over the train. The proof shows that on a clear still day, as this was, the smoke settles down, obstructing the view of a brakeman standing where Kirby may be said to have been stationed in the" performance- of his duties.

There is a rulé of the defendant, then in force, regulating the conduct of brakemen, which in part is as follows: “ They (the brakemen) must ride upon the top of the cars and in such position as to readily pass signals the whole length of the train; but in extremely cold or stormy weather the conductor may permit them to relieve one another regularly, provided there is always one brakeman on top of the cars when the train is in motion.”

When Kirby was climbing on top of one of. the cars at Medina he was acting in obedience to this rule. His position was on the running board of one of these cars, and he was going up on the fifth or sixth one from the engine. In order to readily pass signals the whole length of the train” he must keep in view the cars at the rear of him as well as those in front. The presumption is supported by the facts that at the time of the accident he was fulfilling his duty. He had been under this bridge fifteen times before the day he was killed. He knew the bridge was there. He was not required, however, to realize its exact location. He was justified to some extent at least in relying upon the telltales to warn him of the nearness of the low bridge. (Wallace v. Central Vermont R. R. Co., 138 N. Y. 306.)

The telltales.were placed there pursuant to a statute (Laws of 1884, chap. 439, § 2; revised in Railroad Law [Laws of 1890, chap. 565], § 49, subd. 2) for the purpose of warning brakemen on the running board of the danger ahead. We cannot say as matter of law that Kirby was guilty of negligence. There was room for him to pass through the open space caused by the missing strands. He had duties to perform which would engross his attention, and the smoke would in some measure obscure his vision. It was for the jury to determine whether he was sufficiently vigilant in the light of all the circumstances and inferences presented to them.

There was also ample evidence of defendant’s negligence. The telltales, with several strands gone, are a snare instead of a protection to the brakeman on the running board. If in condition so that a man on top of the car comes in contact with them, he has distinct warning of the nearness of the bridge. He knows that this judicious provision by the defendant is in order that he may be apprised of the proximity of the bridge, and, naturally, he relies upon it. If the defendant allows this signal to become defective so that it fails to give the warning intended, it is far worse than if none was there at all, for' in that event the brakeman would be expected to be alert and have the location of the bridge fixed in his mind as a danger and menace to be anticipated and guarded against instead of depending upon telltales which he has a right to assume are in proper condition.

The evidence wás sufficient to permit the jury to find that' the intestate collided with the bridge. (Fitzgerald v. N. Y. C. & H. R. R. R. Co., 37 App. Div. 132.)

The judgment should be reversed, with costs of this appeal, and the verdict reinstated, with costs to the plaintiff.

All concurred, except Bobsost, J., who dissented.

Judgment entered upon the nonsuit reversed, with costs to the appellant, and judgment-ordered in favor of the plaintiff upon the verdict, with costs.  