
    Vincenzo Di Sario, as Administrator, etc., of Guiseppe Di Sario, Deceased, Appellant, v. New York, Ontario and Western Railway Company, Respondent.
    Third Department,
    January 4, 1911.
    Railroad — negligence — death of trackwalker — evidence raising question for jury.
    Action to recover for the death of one employed as a trackwalker who, after a washout which did not prevent the passage of trains over either of the two tracks of a railroad, having been sent to inspect the tracks at night and while walking northerly on the south-bound track was struck by a north-bound train, which without notice to those repairing the tracks had been switched to the south-bound track. The train was running between twenty and forty-five miles per hour and struck the decedent as it rounded a curve so that he would have been unable to tell by the headlight of the locomotive upon which track it was running. On all the evidence, held, that a dismissal of the complaint was error as it was for the jury to say whether the defendant was negligent and the decedent guilty of contributory negligence.
    Smith, P. J., and Sewell, J,, dissented.
    Appeal by the plaintiff, Vincenzo Di Sario, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Delaware on the 4th day of December, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Delaware Trial Term, and also from an order entered in said clerk’s office on the'4th day of January, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.
    The evidence justified the jury in finding the following facts: After a heavy rain a landslide, and at another place a washout, were discovered on the defendant’s north-bound track between Fishe’s Eddy and Delaware Tower. The defendant’s man Brennan, in charge, was notified of the fact, and called upon the plaintiff’s intestate, who was a trackwalker, and others to assist him. The work began about eight-thirty o’clock in the evening, shortly before the north-bound train was due. Plaintiff’s intestate was required to go south upon the tracks and examine them to discover it any other washouts or slides had occurred. The other men succeeded in removing the landslide from. the track, and were at work at the washout when the plaintiff’s intestate, in about forty minutes,
    
      returned, reporting the tracks all right, and was sent northerly to ascertain the condition there. '
    The washout was not a general washout of the tracks, but water had washed through between the ties and removed some of the ballast. It does not appear that its condition was such that it would have prevented the passage of trains ovei* it, and Brennan, and none of the men at work under him, had any idea that the north-bound • train would proceed otherwise than lipón tire north-bound track. It had not been known at this place before that time to go upon the south-bound track. Unbeknown to Brennan, and those with him, the north-bound train had been directed to switch over upon the south-bound track, and to' proceed over it slowly, giving the necessary signals. It was necessary to run slow and use extra precautions because the men were liable to be on the track Unaware that the train was coming upon it. ' The north-bound train came at from twenty to forty-five miles an hour over the south-bound track, passing Brennan and those working with him on the north-bound track, and about 2,000 feet northerly from where Brennan was at work, at a curve in the track, it ran against and killed the intestate, who was walking along, and about 2 feet south of the southerly rail on the south-bound track. Brennan swears he heard the train whistle as it was approaching him • about 1,000 feet distant,' and the next whistle he heard was the danger signal, which was sounded after the engineer saw the intestate and when he was within 100 or 150 feet of him. Oil account of the curve in the track the engineer was unable sooner to see the intestate carrying a lantern. Brennan swears the bell was ringing as it passed him, and the men upon the train swear that it rang continuously while they were proceeding oil the south-bound track. The engineer last blew the whistle before the danger signal about half a mile from the accident. The plaintiff’s witnesses, some of whom were apparently in a position to hear the whistle if sounded, testified that the whistle did not blow nor the bell ringthey did not hear it. One of them was standing near the track, some distance away, watching the track "and the approaching train. There was a curve in the track going through a cut or embankment just before the engine reached the intestate. The nonsuit was granted upon the ground of the intestate’s contributory negligence, and want of negligence upon the part of the defendant. There was a strong headlight in front of the engine, but some bystanders, one side of but near the track, swore that it was so bright they could not determine which track the train was proceeding upon.
    
      Thomas J. O'Neill and Leonard F. Fish [Andrew Byrne with them on the brief], for the appellant.
    
      Samuel H. Fancher [C.L. Andrus of counsel], for the respondent.
   Kellogg, J.:

The fact that the north-bound train at this place had never proceeded upon the south-bound track gave the intestate a certain right to assume that that course would not be departed from. He undoubtedly saw the reflection of the headlight; he may have heard the whistle a half a mile away; but that did not give him warning that the train was upon the wrong track. The instructions to the engineer to give the necessary signals in order to notify men of the change in the course of the train did not necessarily imply that the whistle would only be, sounded every half mile. The curves in the track, the embankment, the whole situation, present a question for the jury to determine whether a sufficient warning was given the intestate that a change had been made in the plan of running this train. If the track had been straight perhaps he could more easily have determined upon which track the engine was coming ; but the curve in the track before it reached him threw a greater uncertainty upon it. The washout upon which Brennan and the men were working does not appear of such a character as to notify or warn the intestate' that the train, could not pass upon . that track. Apparently, from its condition, as described, he might assume that the train could pass over it. The intelligence of the man, the condition of the track, the curves and all the circumstances are proper questions for the jury to consider in determining whether the intestate acted as an ordinarily prudent man in his position would act or whether he was guilty of a carelessness which brought about his death. It was for the jury to determine whether'lie knew or had sufficient notice that the train was proceeding upon the southerly track, or whether lie felt that he was proceeding in a safe place, notwithstanding the fact that he could hear the rumbling of the train and see the reflection of- the lights. Brennan swears that he had told the men when a train was coming on either track to get off from both tracks ; but the evidence tends to show that he and his gang continued to work upon the north-bound track while the train was passing them on the south-bound track, after they discovered upon which track it was proceeding.

. It cannot he said, as matter of law, that- the defendant gave the intestate sufficient warning,, or that the intestate was guilty of ueg ligence which caused his death. ■ ■

The judgment should, therefore, he reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., and Sewell, J., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event. ■  