
    Francesco Causullo, as Administrator, etc., of Carmine Pitzzulo, Deceased, Respondent, v. Lenox Construction Company, Appellant.
    First Department,
    December 6, 1907.
    Master and servant — negligence — death, by electric rail — instruction as to danger — weight of evidence.
    Although less evidence of freedom from contributory negligence* is required where an-accident results.in death, yet the plaintiff is not relieved from the burden of showing by a fair preponderance of evidence that the defendant neglected some duty owed to the decedent.
    Evidence in an action to recover for the death of an employee who was killed in a subway by coming in contact with an electric rail examined, and held to be insufficient to show that the defendant was negligent in failing to warn the decedent of the danger.
    .When- the decedent is shown to have been employed by the defendant at the same work for two months, testimony by a fellow -servant, who never saw the deceased except upon the day of the accident, that he did not hear the deceased warned of the danger, is without probative force-on the issue as to whether the decedent had received instruction. . . ■
    In such action the burden is upon the plaintiff to show that the defendant neglected its duty to instruct the décedent as to dangers, and, in the absence of such . evidence, the defendant is not required to show that it gaye instructions.
    Appeal by the defendant, the Lenox Construction 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 11th day of May, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s.office on the 10th day of May, 1907, denying the defendant’s motion for a, new trial made upon the minutes.
    
      Frank Verner Johnson, for the appellant.
    
      Thomas J. O’Neill, for the respondent.
   Lambert, J.:

The defendant, a domestic corporation,- was engaged' in doing certain work in connection with the construction of the subway on Lenox avenue. Plaintiff’s intestate was one of the laborers employed, engaged .in mixing and delivering to the bricklayers and others, concrete upon the work, which was being placed over the roof of the subway and under the tracks of the surface railroad, operated by a third rail beneath the surface. Plaintiff’s intestate came in contact with this third rail highly charged with electricity, and his death resulted. The complaint charged that- the injuries resulting in death were caused by the negligence of the defendant in its failure to supply the deceased with a “ suitable and proper place within which to do his work, and that the place where deceased was directed and obliged to do his work was dangerous, unprotected, unsafe and unguarded, and through its failure to supply said deceased with competent and suitable foremen to guide, guard and direct deceased in his said work, by reason of which he was struck by an electric wire or current.” A notice under the Employers’ Liability Act (Laws of 1902, chap. 600) was served, but it was found to be defective, and was not admitted in evidence, so that we have merely a common-law action for negligence, and no claim appears to have been seriously made upon the trial that the defendant failed in providing as safe a place in which to perform this labor as the circumstances of the case permitted; so that the real issue presented.was whether the plaintiff’s intestate was such an inexperienced or green ” workman that it became the duty of the defendant to give him instructions or warnings. That was the theory on which the case went to the jury, and the only questions necessary to determine here are whether the evidence justified the finding that the defendant was negligent in this respect, and whether the plaintiff has shown his - intestate to be free from negligence contributing to the result.'

It has been held that in cases where the accident results in death less evidence will suffice to show lack of contributory negligence, but we know of no rule which relieves the plaintiff of the duty of showing that the défendant 'has neglected some duty which it owed to the deceased by a fair preponderance of evidence under any circumstances; and tried by this test, we are of the opinion that the judgment and order appealed from should be reversed, as being against the weight of evidence. The theory being that the deceased was a “ green ” man, sent into a dangerous situation, the plaintiff called as a witness one Tost, a bricklayer, and he was asked if he had ever seen the deceased working in the conduit on any other day before the day of the accident, and he answered in the negative. ' The same witness also testified that he did not hear any instructions given to the deceased on the day of the accident, and that he had never heard the deceased warned of the danger of contact with the third rail. This is all the testimony in the case so far as we aré able to discover — and the respondent does not call attention to any other — which even suggests that there was a neglect of duty on the part of the defendant to warn him of his danger. This is clearly insufficient to show that the defendant had failed in its duty, for the testimony of one man, who does not appear to have been present at all times, that he has not heard such warning is clearly of no probative force. So far as Yost’s testimony goes, it does not appear that he ever saw the deceased except on the day of the’accident, though it clearly appears from' the- evidence of various witnesses-that he was employed-at least two months in the capacity of a common laborer, mixing concrete, carrying the same to others, and doing all kinds of coarse work about the construction.

On the part of the defendant, Roberts, the foreman of the bricklayers, testified that he 'sent the deceased to help the bricklayers, and that “I told him to look out for the third rail, that.it was dangerous, and he would be likely to be killed. He says ‘ me watch, me work at this place longa time.’ * *" * Five minutes before he was killed, I was down.in the hole, and he was joking with -the bricklayer for whom he was dumping stuff, and I caught him with his head very close to the -rail, and I got him by the shoulder and partly dragged him down and 1 said to him, ‘look out, you .bye and bye in the box,’ and he said ‘ Me watch, me no afraid; me watch; me work at this place longa time.’ ” The general foreman, Sinclair, testified that he had seen the deceased doing this kind of work; that he had been there from six weeks to two months. Munroe, the foreman of the Italian laborers, testified that the deceased had been in his gang for a week doing this,kind of work; ■ that in doing it they had to work about the third rail, and that he warned the decedent, of the dangers of this third rail. One San Giovanni, an Italian laborer, testified that he had known the déceased for -sevén months; that they had worked together on this particular work, where the third rail was exposed for six weeks or more, and that their work was all about the place, and that he heard the foreman warn the deceased and others every day in reference to the third rail; he likewise testified that he personally warned the deceased just before the accident, and that the deceased responded that he was not drunk. Capo Bianco, another foreman, testified that the deceased had worked in his gang five or six months doing this general work in and around the construction of the subway; that he worked in under these tracks; that he had talked with the deceased every morning about' the danger of the third rail; that he had schooled him; that he had himself come into close contact — touching his hat — with the third rail in the presence of the deceased, and that he had made this the occasion of a warning.

There is no proof to contradict this array of. evidence to show that the deceased had ample warning; that he knew as well as the defendant might be presumed to know that he was working where ■ he was exposed to the dangers of this third rail; and there was, therefore, no reasonable justification for the jury to find that the defendant had negligently exposed him to dangers, without giving him warning. It is not necessary to show that the defendant, through its officers, called decedent’s attention to the danger; it is for the plaintiff to show that there was a neglect of duty on the part of the defendant, and the evidence not only fails to show this, but it is overwhelming that the deceased knew the situation and the danger to be apprehended, and he must be deemed to have accepted the risk of the employment.'

Because the verdict is against the weight of evidence the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin and Laughlin, JJ., concurred; Houghton, J., concurred in result.

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