
    Ida C. Schowerer, as Administratrix, etc., of George Schowerer, Deceased, Appellant, v. New Jersey and New York Railroad Company, Respondent.
    Second Department,
    December 4, 1914.
    Railroad—negligence — duty of a railroad company to warn employees of approach of train.
    Where a conductor of a freight train, after taking a siding so as to clear the main track for a passenger train which he knew was about to arrive, stepped from his locomotive and while attempting to cross the main track to reach the station was struck by the passenger train, the railroad company cannot be charged with negligence in that no signals were given by the engineer of the passenger train.
    Appeal by the plaintiff, Ida 0. Schowerer, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 20th day of April, 1914, upon a dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 29th day of April, 1914, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Sydney A. Syme, for the appellant.
    
      Henry Bacon, for the respondent.
   Per Curiam:

A freight train bound north went upon a siding at Pearl Biver so as to clear the main track for an overtaking passenger train. Before the freight train stopped the decedent, the freight conductor, stepped from the pilot of his locomotive and attempted to cross the main track to reach the station when he was struck by the passenger train for which he had just vacated the main tracks. The freight conductor was doing a customary thing in taking the siding; he did it to yield the right of way to the other train, and he knew its scheduled time of arrival. The complaint, however, charged defendant with negligence, in that no signals were given by the engineer of the approaching train. But was there such a duty to signal to this freight conductor ? Should the engineer by signals say to the conductor that his passenger train was coming ? This decedent was already under standing orders to clear the track to make way for this passenger train, which arrived substantially as scheduled. Bailway companies are to act rationally, but, if the oncoming train is keeping its appointment, its engineer is not required to whistle to a freight conductor, who is bound to be vigilant, obey orders and have his train as well as his crew off the main track at the passenger train’s approach. Whistles or other signals may be required toward railroad employees on its track when it may be reasonably foreseen that otherwise its workmen may be caught unawares in a place of danger. (Blanchard v. D., L. & W. R. R. Co., 211 N. Y. 79.) The basis for such obligation fails, however, as to the conductor of a freight tram which is already on the siding to let pass a regular train which arrives substantially on schedule time. The demand made on the railway company for signals in the present case ignores the very fact that the freight conductor’s duty involved perfect knowledge that this overtaking train would come at the instant when he placed himself in its way.

The judgment and order should be affirmed, with costs.

Present—Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.  