
    Daniel Berandino, as Administrator, etc., of Salvatore Berandino, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    First Department,
    February 4, 1910.
    Railroad—negligence — death by electricity from “live”, rail — safe place to work — duty to establish rules — facts raising question for jury.
    Although it may be negligent for one employed to clean locomotives in the vicinity of a third rail highly charged with electricity to sit upon a wooden cover guarding the rail, yet where he had arisen to his feet before receiving the shock which killed him, the death did not result from his former act of negligence,
    
      It is for the jury to say whether a master maintaining a yard for locomotives should adopt rules for the protection of employees, working therein, and especially so where it contains “live" rails charged with a; current of electricity sufficient to cause death.
    The question as to whether a master in his duty of ordinary diligence to protect employees is called upon to establish and enforce rules is usually for the jury. It is only where it is clear beyond dispute that the situation does not call for rules,-or where no rule could have prevented an accident, that the court may hold as a matter of law that the. master was hot: obliged to establish rules.
    Where in an action to recover for the death of one employed to clean locomotives in.the vicinity of a “ live ” rail it appears that beneath the rail there was a depression six inches deep which was full of water and that a part of the rail protruded beyond the guard, it is for the jury to say whethei'the railroad ■failed in its duty to provide a safe place to work. • A nonsuit is error.
    Appeal by the plaintiff-, Daniel Berandino, as ¡administrator, etc., from a judgment of the Supreme Cóiirt in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 22d day of July, 1909, upon, the dismissal of the complaint by direction of the court at the close of the plaintiff’s case ón a trial at the Hew York Trial Term, and also from an order entered in said' clerk’s office on the 10th day of August, 1909, denying the plaintiff’s motion for a new trial made upon the minutes. . ■
    
      jRichmond J. Reese, for the appellant.
    
      Robert A. Kutschboeh, for the respondent.
   Scott, J.:

This is an appeal by plaintiff from a judgment entered upon a dismissal of the complaint at the trial. :

The action- is for damages for the death of plaintiff’s intestate, who was a laborer employed in cleaning defendant’s jloeomotives at its yard at -Waketield. This yard was the connecting point between defendant’s electric service and its steam, service, where the electric motors used to draw trains in and out of the city of .Hew York are substituted for steam locomotives used on other parts of defendant’s line. There are, of course, a number of tracks! in the yard,-most of which are electrically equipped, although some are. without such equipment. The electrical equipment was what is known as the “ third rail ” system, consisting of a rail charged with electricity, fastened" to the ties at the same level as the rails,, of the track, and distant eighteen or twenty inches from, one of: the traction rails. Tliis “live” rail was covered on the top and on the side furthest from the track by a wooden covering held in place by a series of earthenware clamps. The purpose of this covering was to protect persons walking in' the yard from coming in contact with the “ live ” rail. There was evidence that the “ live ” rail was not completely covered at the point where the deceased met his death, and also evidence that there wás a hole or depression of some six inches under the third rail at that point, which was full of water that had apparently overflowed from a water tank standing opposite. The deceased, an Italian, who spoke no English and understood but little, was engaged in wiping off and cleaning a steam locomotive which had recently come into the yard. It was standing on an electrified track, taking in water from the tank. The deceased had wiped, off the driving wheels, sitting while doing so upon the wooden covering of the third rail as upon' a bench. He then arose to a standing position, placing his hands while doing so upon the side rod connecting the two driving wheels. He had straightened up into a standing position, when he was instantly killed by a shock of electricity, undoubtedly resulting from a contact between the back of his leg and the third rail. Although it may have been a careless act for the deceased to sit on the wooden covering of the third rail, it seems to be clear that no harm resulted from that act alone. It might perhaps be inferred from the evidence that the contact between his leg and the rail took place while he was rising, but the plaintiff, on this appeal, is entitled to the most favorable deductions that can be drawn from the evidence, and there is evidence to support a finding thatthe deceased had entirely completed the act of rising before he came into contact with the “live” rail.

It was the defendant’s duty, to use reasonable care to provide the deceased, its servant, with a safe place to work, and, if necessary, to establish and enforce proper rules for his protection while engaged in his work, and a failure to establish such rules or a laxity in their enforcement constituted negligence. (Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666; Wood Mast. & Serv. [2d ed.] 794, § 403.) In making rules for the government of its employees, a railroad corporation is bound to use ordinary care- and to anticipate and guard against such accidents and casualties as may be reasonably foreseen by its managers in the exercise of such ordinary care. (Berrigan v. N. Y., Lake Erie & W. R. R. Co., 131 N. Y. 582.) The duty ef the - master and the'degree of .care which he is, called upon to exercise is measured by the law of ordinary diligence, having regard to the danger to be apprehended; and whether or not the - case is one calling for the establishment and enforcement of rules is usually a question for the jury. (Devoe v. N. Y. C. & Hudson River R. R. Co., 174 N. Y. 1.) It is only where it is clear beyond dispute that the situation was not one calling for rules,, or one in which no rule could have prevented the accident, that the court is justified in. holding as matter of law that the master was under no obligation to have established rules. This, in our opinion, was not such a case. A railroad yard is, at best, a dangerous place to work in, and the courts have frequently held that a duty rested upon the master to adopt proper rules for the protection of its employees who are required to work therein. In. the defendant’s Wakefield yard there was added to other sources of danger the ‘‘live'’ rails carrying charges of electricity sufficient tó produce instant death, . The existence of this danger is, of course, patent, and it-would seem that it should not be difficult to establish rules which would at least minimize the danger to those employed as the decedent was. ■ At all events, it was a fair question fort the jury, and should have been submitted to them.

- So, too, the evidence as to a depression under the third. rail suggests a question as to whether the defendant had performed its full' duty of providing a safe, place to work. ■ Ordinarily, such; a depression would perhaps be too trivial to notice, but when taken in conjunction with the “ live ” rail, and the protrusion of an unguarded, part of the rail, or an iron attachment, it might reasonably be held to assume a.serious aspect. We think that the evidence;as it stood warranted a submission of the case tp the jury.

The judgment and order appealed from must, therefore, be •reversed and a new trial granted, with, costs to appellant to abide the event.

.Ingraham-, Pi J., McLaughlin, Clarke and Bowling, JJ., concurred. ' • " ; .

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  