
    Theodore Dulfer, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    November 28, 1906.
    Negligence — conductor injured by falling in pit in repair shop — negligence of motorman as proximate cause — unforeseen accident — knowledge of danger.
    Where a conductor who has been injured while following a disabled car with the . trolley rope in his hand testifies that the motorman shot the car ahead into the repair barn which was dark; that the rope twisted around his hand and that the trolley pole came off and, flying up, lifted him and carried him forward so that he fell into a pit between the tracks, a recovery cannot be based upon the fact that the pit was a dangerous place, of the presence of which the conductor was not warned, for the conduct of the motorman, a fellow-servant, was the proximate cause of the accident.
    It cannot be said that the company could have foreseen that in such a situation a motorman might so manage a car as to cause an accident of this character. Hirschberg, P. J., and Hooker, J., dissented.
    Appeal by the defendant, The Brooklyn Heights Báilroad Company, from a judgment of the Supreme Court in favor of the plain-, tiff, entered in the office of the clerk of the county of Kings on the 20th day of December, 1905, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 16th day of January, 1906, d.enying the defendant’s motion for a new trial made upon the minutes. " "
    
      
      I. R. Oeland [George D. Yeomans with him on the brief], for the appellant.
    
      Melville J. France, for the respondent.
   Jenks, J.:

The version of the plaintiff is that the car was moving and he was walking behind it to guide the trolley pole along its wire, and all of a sudden the motorman shot ahead in the car shop, and the pole came off, and the ropes twisted around my hand and kind of lifted me, and the car went ahead under the car barn then ; that is, the car barn, and it was quite dark, and when I came down again I went down in the pit.” He further testifies that when he went down the car “ was going at a pretty good speed.” And also that when the trolley pole left its wire it went up because it came under the door, and it went away down, and as soon as it passed the door there was a big space, and the pole flew away up, and it sort of lifted me off my feet.” He weighed 180 pounds, and he was lifted about an inch off the ground. The pit was about 10 feet within the barn. The sole question of the defendant’s negligence submitted to the '■jury without objection by the plaintiff was whether this pit was a dangerous place and whether the plaintiff was warned. It seems to me that, although the pit was' the causa sine qua non of the injuries, for of course had it not existed the plaintiff would not have been cast into it, the causa causans was the conduct of the motorman as described by the plaintiff. (Trapp v. McClellan, 68 App. Div. 362; Laidlaw v. Sage, 158 N. Y. 73; Leeds v. New York Telephone Co., 178 id. 118, 122.) How the motorman was the fellow-servant of the plaintiff.

And further I think that it cannot be said that the defendant in the exercise of due care should have foreseen that in such a situation as is described by the plaintiff its motorman might have managed a car so as to carry one in the relative situation of the plaintiff off his feet and cast him down into a pit 10 feet within the barn. See Jex v. Straus (122 N. Y. 293) and Beetz v. City of Brooklyn (10 App. Div. 382). It is not contended but that the pit was a necessary part of the defendant’s repair shop, or that it was marked by any unusual features which made it a pitfall, or that any construction was lacking, to its defect, or that any precaution about it could llave been taken which would have saved the plaintiff under the conditions as described by him.

I think that the judgment and order must be reversed and a new. trial granted, costs to abide the event.

Miller, J., concurred; Gaynor, J.,. concurred in separate opinion; Hirschberg, P. J., and Hooker, J., dissented.

Gaynor, J. (concurring):

The pit into which the plaintiff was dragged by the motorman was the usual one Used to get under cars to repair them, and was- in the part of the car shed or yard devoted to repairs, and called the repair shop. The plaintiff had been sent out on the route as conductor to bring iñ a disabled car and put it in this repair shop.' Instead of remaining on the rear platform of the car he got off and walked- behind -as the car Went into the shop, holding the rope of the trolley pole in his hand to keep the trolley pole. on the wire. The motorman suddenly shot the" car ahead rapidly as he came -to the pit, the rope got wound around the plaintiff’s hand and lifted him Up and dragged him into the pit. Such is his version. He testified that he did not 'know thbre were pits in the repair shop, and was hot instructed that there were, and on this the case was sent to the jury. I submit that this testimony is wholly incredible. It is a matter of common knowledge'thát pits are necessarily there. We all know it, and yet we are asked to credit a railroad employee . who says he did hot know it. Courts should not allow themselves. to be imposed on by obvious falsehoods; to do so gives a false notion of the administration of justice, and begets disrespect for it. The belief that courts can be fooled should be dispelled.

Aside from this,.-the -motion at the close to dismiss should have been granted. The proximate cause was the negligent act of the motorman, his shooting of the car ahead so suddenly and rapidly. Even if the plaintiff knew the pit was there he would have been clragged into it just the same by the rope which entangled his hands. It follows that the failure to inform him that -pits were in the shop was of no importance — if we are to accept his pretence that he did not know it.

Judgment and order reversed and new; trial granted, costs to abide the event. '  