
    Dukes v. Eastern Distilling Co.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Negligence—Dangerous Premises—Nuisance.
    One who maintains a bridge connecting buildings occupied by him on opposite sides of a railroad is liable to a brakeman who is struck by it while operating the brakes on' a car, and it is immaterial that the railroad company consented to its construction ; the company having notified the defendant before the accident that the bridge was dangerous, and must be removed, which notice was not heeded.
    3. Same—Contributort Negligence.
    The brakeman testified that, in response to a signal for brakes, he went to his place on the train; that he tried to see ahead, but that his vision was obscured by smoke from the engine; and that then he was struck by the obje'ct causing the injury. Held, that he was not guilty of contributory negligence.
    
      Appeal from circuit court, Kings county.
    Action by Henry B. Dukes against the Eastern Distilling Company for injuries received while plaintiff was a brakeman on the Long Island Bailroad through the negligence of defendant in constructing a bridge over the railroad by which plaintiff was struck while engaged in his duties as brakeman. ■On the trial the court charged as follows:
    “Gentlemen of the Jury: The plaintiff in this action was a brakeman in the service of the Long Island Bailroad Company.. He was stationed on the last car of the construction train, in which there were some eight or nine cars, running into Long Island City on th% evening of September 22, 1885. As the train passed through a place called Blissville’ it ran under a bridge which crossed the road at that place, connecting the two portions of a distillery belonging to the defendant, or in the occupation of the defendant, the Eastern Distilling Company, as the plaintiff claims. According to his account of the •accident, as the train reached this point the engineer blew the whistle of the engine, signaling to him that he was to apply the brake upon the car on which he was stationed, and he thereupon endeavored to comply with the ■order which,the signal indicated, to apply the brake. This rendered it necessary for him to ascend to the top of the car, and he tells you that, while in the act of putting on the brake, he was struck by something which, for the space of a few minutes, rendered him insensible, and it is to recover the damages which he sustained by reason of the injuries thus inflicted upon him that he brings this suit.
    “How, the first material inquiry for you is the situation of this bridge, or the bridge (if it was a bridge) which caused the accident. According to the plaintiff it was upon premises either in the possession of the Eastern Distilling Company or belonging to the Eastern Distilling Company. I infer from the testimony which has been offered for the defense that it is the contention of the counsel for the defendant that the title for the time being of these premises was actually in two persons named Fleischmann, and not in the Eastern Distilling Company; but the plaintiff contends that, whether or not the leasehold title to the property was in the Fleisehmanns, the distillery, and this portion of it which formed the bridge, was occupied by the Eastern Distilling Company. How, it is enough, as far as that branch of the case is concerned, if you shall be satisfied that the bridge was upon the premises either ■belonging to the Eastern Distilling Company at the time of the accident, or which they occupied for the purpose of their business, and it is essential, before you can render a verdict for the plaintiff, that you should find that the ■bridge was upon the premises, or attached to the premises, which at all events were occupied by the company. How the defense appears to be, so far as the maintenance of this structure is concerned, that it was originally built by the ■consent of the railroad company, and one of tht "r witnesses testifies that when the track was broadened some ten years ago, or when it was made double some 10 years ago, the engineer and master mechanic of the railroad company came to the spot, and with his approval the height-of the bridge was fixed at or about 16 feet above the track. How, of course, if this was done, .so long as the consent was not revoked, the presence of the’hridge over the property of the railroad company remained lawful; and if such was the fact,— if the railroad company consented then that the bridge should be there,—the . plaintiff cannot recover without satisfying you that the railroad company subsequently revoked the consent, and notified the distilling company, or its agents or officers in charge of the distillery, that they must remove the bridge. As soon, however, as that was done, if it was done, the continuance of the structure then became unlawful. Hdw, it is the contention of the plaintiff here that such a notice was given, and Capt. Woods, who was in the service of the railroad company before the time of the accident, testified that he himself gave such a notice to a person who has been described or named as Col, Little, and who is testified by other witnesses to have been the superintendent of the distilling company, in charge of the work there. Irrespective of the question of whether there was any original consent or not, if you are satisfied by proof that, before the accident, notice was given to this distillery company to remove that obstruction, and this notice came from the Long Island Railroad Company, and reached the distilling company, I say it then became the duty of the distilling company to remove the structure, and the continued maintenance of it was unlawful. It is for you to say whether such were the facts or not.
    “But before the plaintiff can recover, you must be satisfied that the structure was unlawfully there, within the rules I have already laid down for your guidance; that is to say, either that the company never consented that it should be put there, or that, if it did consent, it subsequently revoked that consent, and notified the distilling company to remove the bridge. It is essential that he should show that he was injured here, in order to justify you in giving him a verdict. Still further, in this class of cases, the plaintiff must show always, not only that the accident which causes the injuries was the result of the negligence or some unlawful act or fault on the part of the defendant, but that he himself was absolutely free from any fault contributing to the injury. He must be free from what the law denominates contributory negligence, and he must show that as part of his case,—satisfy you of that affirmatively.
    “The plaintiff tells you that, as soon as he heard this signal from the engine, he went up to his place and endeavored to apply the brake; that he tried to see ahead; that his vision was more or less obscured by smoke; and that then he was struck by whatever object he came in contact with,—as he contends, this bridge.
    “The suggestion in behalf of the defense is that if he had used his eyes and faculties as he ought to have done, he would have seen the bridge in time to have avoided it. How, gentlemen, he was bound to exercise his faculties; bound to be vigilant; bound to act as a prudent man would have done under the circumstances to protect himself; and, if he failed to do this, of course he cannot recover. ”
    Verdict for plaintiff for $2,250, and from a judgment thereon, and an order denying a motion for new trial, defendant appeals.
    Argued before Barnard, P. J., and Bykman and Pratt, JJ.
    
      C. Bainbridge Smith, for appellant. Charles J. Patterson, for respondent.
   Barnard, P. J.

The defendant is a domestic corporation carrying on the business of distilling spirits at Blissville, in Queens county. The premises occupied by the firm are partly on one side of the track of the Long Island Railroad and partly on the other. There is a bridge connecting the buildings on each side of the railroad. This bridge at the time of the accident was 14 feet 11 inches above the top of the rails. The cars were from 10 feet to 12£ feet high. Some of these cars call for a brakeman to operate his brakes on top of the car. In September, 1885, just before passing under this bridge, a signal was given by a railroad engineer to apply brakes to the train. The plaintiff was a newly-engaged brakeman, and stood on top of the car to apply his brake when the bridge hit him and inflicted a severe injury. The bridge was built with the consent of the railroad company, and has been enlarged some with like consent. This consent was no defense to the construction of a dangerous nuisance. The railroad company subsequently, and before the accident, notified the defendant that the bridge was dangerous, and that it m ust be removed. This notice was repeated, but was not heeded by the defendant until the accident happened.

It is not important whether or not the company owns the premises. Whoever continues and adopts a nuisance is responsible for an injury caused thereby as if he constructed it. Wasmer v. Railroad Co., 80 N. Y. 212. The defendant maintained this structure until right after notice to remove it. Ho length of time without accident will excuse the defendant for an accident when it does happen. It was only a question of time. When a signal to brake was given just before reaching the bridge, and a brakeman who was ignorant of the obstruction should go on the car, as he was in duty bound to go, and the accident happened, of course the brakeman was free from fault. The smoke from the engine hindered his seeing the bridge. The judgment ought therefore to be affirmed, with costs. All concur.  