
    Absalom Pollitt, Adm’r, Pl’ff, v. The Kings County Elevated Railroad Co., Def't.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Negligence — Elevated railroad.
    Plaintiff’s intestate was foreman of a gang of workmen in the employ of the Phoenix Bridge Company, which was engaged in painting defendant’s superstructure, and was killed thereon by one of its trains. ' It appeared that such train could be seen for a considerable distance, and that decedent was not seen by the engineer before he was struck. Held, that defendant was under no obligation to regulate .its trains with reference to his presence, and that under the circumstances there could be no recovery.
    Exceptions ordered heard at general term on dismissal of the complaint.
    The plaintiff’s son, Joseph A. Pollitt, was killed by the cars of the defendant on its elevated railway in Brooklyn on May 8,1888, by being crushed between a car and the station platform.
    The deceased was in the employ of the Phoenix Bridge Company and was not a fellow servant of defendant’s servants. He was foreman of a gang of men of the said bridge company who were, on the morning of his death, painting the said structure at the Brooklyn bridge station of the defendant. An approaching train could be seen fifty or seventy-five feet from the place where the accident occurred. To get out of the way of trains the men working on and about the tracks went under the station platform or got on top of it, or stood on the fiat boarded platform on the opposite side of the track. As the train turns the curve it swings in towards the station platform, and there is then but the space of three or four inches between the platform and the body of the car.
    
      W. J. Graynor, for pl’ff; Tracy, MacFarland, Ivins, Boardman dr Platt, for def’t.
   Dykman, J.

We find nothing in this case to justify a recovery. The deceased was in the employ of a company engaged in painting the superstructure, and if he was lawfully upon the track the-defendant owed him no duty, and was under no obligation to-regulate the operation of its trains with reference to his presence.

The testimony fails to convict the engineer of any failure in duty after the discovery of the deceased upon the track, and in-fact there is no proof that he was seen by any person upon the train until he was struck, while it plainly appears that the deceased could see the train for a considerable distance from where-he was struck. He was upon a railroad track and was bound to know that a train might run over it at any time. Other persons upon or around the track made their escape from the incoming train with safety, and it is not apparent why he did not do so-likewise.

The exceptions cannot therefore be sustained, and the defendant must have judgment dismissing the complaint, with costs.

Barnard, P. J., and Pratt, J., concur.  