
    The New York, Lake Erie & Western R. R. Co., Resp’t, v. The Atlantic Refining Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    Heglioenoe—Raileoads—Costbibutoey.
    In an action for negligence it appeared that plaintiff had the day before brought to a station and left on a switch track a car load of lumber for ' defendants, which the latter partially unloaded and left the remainder, as alleged, in a dangerous condition; that in the night a high wind arose which blew the lumber on the tracks and caused the accident. The court excluded all consideration of the question of plaintiff’s negligence. It was show nthat building was going on at the station, and large quantities^ of material were brought there;, that there was but one switch track which sometimes held a number of cars; that on backing cars upon the switch those already upon it were often severely shaken; that there was no track walker nor any person to observe the condition of carson the switch track. Seld, that under the circumstances these were elements of contributory ■ negligence upon plaintiff’s part, and it was error to withdraw that question, from the jury.
    Appeal from a judgment in favor of the plaintiff rendered upon the verdict of a jury at circuit.
    
      John Brooks Leavitt, for app’lt; Charles Steele, for resp’t.
   Barrett, J.

This action was brought to recover damages for injuries done to the plaintiff’s locomotive and cars at aplace called Dyke’s switch. The locomotive and cars in question were so damaged by running upon certain lumber belonging to the defendants, which had fallen upon the plaintiff’s track at that place. This lumber had previously been transported by the plaintiff, Under a contract with the defendants, from Olean, in this state, and the car containing it had been delivered to the defendants at Dyke’s switch on the afternoon preceding the accident. This car was so delivered upon the siding or switch adjoining the plaintiff’s .main tracks, and the defendants’ agent, Bechtle, commenced to unload the lumber. The unloading was not completed that day, and the-car was left for the night with the remaining unloaded lumber in the neighborhood of the plaintiffs’ main tracks.

The charge is that the defendants were guilty of negligence in leaving this remaining lumber without proper support, and that in consequence of such negligence it was blown over upon the plaintiff’s main track sometime in the evening by a high wind. The question of the defendants’ negligence and of their responsibility for the acts of Bechtle was properly submitted to the jury, and their verdict is conclusive on this branch of the case. The question is substantially identical with that involved in the case of Chapman against the same defendants, and it was settled adversely to them upon their appeals in that case. 38 Hun, 637; 108 N. Y., 638; 13 N. Y. State Rep., 900.

The present differs from the Chapman case only with regard to the question of contributory negligence. Chapman was the ■engineer upon the plaintiff’s train, which was wrecked. The defendant’s counsel there claimed that the court erred in refusing to charge as requested, that “if the car was left in a dangerous ■condition, after being partly unloaded, it was negligence on the part of the railroad company to leave it in a dangerous condition so near the main track.” The general term held that even if this proposition was correct, “ it did not relieve the defendant if it was also guilty of an act of negligence which contributed to the injury.” The only question there was as to the contributory negligence of the engineer. Here, however, the question is directly involved, as the railroad company is itself the plaintiff seeking to recover because of the defendants’ negligence. We see no reason why an exception • should, under the circumstances, be made to the ordinary rule as to contributory negligence.

■ The defendants’ liability rests solely upon their negligence, and not at all upon any willful act. It would seem to follow, therefore, that if the plaintiff’s own negligence contributed to the occurrence, it cannot recover. That principle is well settled and quite universal. If, for instance, the engineer had seen the lumber in time to stop the train, can there be any doubt that the rule could be invoked ? Or if some other agent of the plaintiff’s had observed the fall of the lumber and had suffered it to lie upon the track, or had observed its tottering condition and ignored the impending danger? The learned judge at circuit entirely excluded all consideration of this question. He declined to charge the defendants’ third, fourth and ninth propositions, which were in these words:

“ Third. If you find that the accident occurred through the negligent omission to foresee that the lumber was not left in a condition to withstand a storm, then the plaintiff is equally negligent.”
Fourth. If you find that the accident occurred through any negligent omission of plaintiff to have a track walker, a person in charge of the tracks, the verdict should be for defendant”
“ Ninth. If you find the railroad company was negligent in any way which helped to cause this injury, the defendant is not liable.”

Adverting to these requests later on, the learned judge charged as follows:

“I have already stated to you that the negligence upon the part of the railroad company in not having a watchman upop the track, if you please, or in running its engine at a high rate-of speed, or anything of that kind, has nothing to do with the question of absolving these defendants from their liability. The plaintiffs were not bound to assume that these defendants, were going to put their lumber upon the track, and, therefore, have a watchman for the purpose of seeing they kept it off. The law does not require a railroad company, or anybody else, to provide a guard to keep trespassers off their property, or to-keep persons from putting obstructions upon their tracks.”

We think this view of the case was inaccurate, -and that the entire exclusion of the question from the consideration of the jury was error. Of course the plaintiff was not bound to assume that the defendant was going to put lumber on the track. The error here consists in treating the defendants’ conduct as that of a trespasser. The gist of the action was negligence. The lumber fell upon the track. It was not put there by the defendants or their servants. As the recovery was sought upon the sole ground of negligence, the question whether the plaintiff’s negligence contributed was necessarily involved.

If there was no testimony tending to show such contributory negligence, then the charge given, and the refusal to charge as. requested, were harmless. But we think there was enough to go-to the jury on this head. The surrounding circumstrances have to be considered. This siding was used by the plaintiffs for switching their trains, while waiting for express or through freight, trains. It was also used for detached cars, such as that which contained the defendants’ lumber. A witness testified that “when trains of the company would come on this switch they would bump up against these other detached cars, and sometimes push the cars probably for a quarter of a mile out of the way, so that we could not get at them to unload them again; that was the ordinary condition of affairs there when the cars were standing on that switch.”

This witness also testified that there was a great deal of building going on in that neighborhood, that probably three or four hundred men were employed there; that other “ stuff ” was brought in besides lumber and put on this siding, and that at different times the siding was occupied by as many as a dozen cars. It also appeared that this Dyke’s switch was a pump station, but that it was not an ordinary station, and that only way freight trains Stopped there regularly. Ho tickets were sold there, and there was no station agent. Another witness testified that there were three cars on the siding on the day in question; that he was at work on the third car, and that “ the three cars were shoved up together that afternoon by the way freight.” It further appeared that the plaintiffs had no watchmen there; that the cars and switch were left entirely unguarded, and that there was no supervision whatever of the tracks or their surroundings. We do not mean to say that the jury were bound to find contributory negligence from these facts, but we think such facts and others not necessary to particularize were proper for their consideration.

The jury have said that if the plaintiffs had exercised the care which the situation called for, and had recognized the danger of permitting more or less loose material to be lying as this lumber was, in close proximity to their track, the accident would have been avoided. They might also have considered the fact that this material was in cars liable to be pushed, shoved and jolted at any moment by their own way freight trains, and that the neighborhood was a busy, bustling one, tank building proceeding rapidly and hundreds of men and boys employed upon the work. Other considerations bearing more or less directly upon the question of the duty imposed upon the plaintiffs under all the surrounding circumstances might be adverted to. There was, for instance, but a single main track. The switch was half a mile long, with a short curve just before it was reached, and the plaintiffs’ train (more than two hours behind time) came round this curve at the rate of from forty to forty-five miles an hour. But we need not" state all the circumstances. Enough has been pointed out to show a substantial foundation for the submission of the question of contributory negligence to the jury. It follows, therefore, that the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bartlett, J., concurs.  