
    Ignatio Calogola Pennica, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    Second Department,
    January 19, 1912.
    Railroad — negligence — facts insufficient to establish that plaintiff was a resident of this State — workman in railroad tunnel overcome by smoke and gas.
    Where in an action brought against a foreign corporation to recover damages for personal injuries sustained by the plaintiff in Pennsylvania, it appeared that the plaintiff was a subject of Italy, in which kingdom his family had remained; that after boarding two years in Brooklyn he went to Stroudsburg, Penn., and remained in that State until the time of the accident, a period of nearly five years, with an occasional visit to Brooklyn, the fact that he testifies that he went away with the intention of accumulating money to send for his family, and intended to live at Brooklyn, will not suffice to establish his residence was in Brooklyn for the purpose of enabling the court to take jurisdiction of the action.
    In an action brought to recover damages for personal injuries sustained by the plaintiff who while employed in cleaning the defendant’s railroad tunnel was overcome by sxnoke and gas discharged by locomotives, liability of the defendant cannot be predicated upon the theory that the defendant railroad company was negligent in failing to direct the work in-which the plaintiff was engaged to: be performed at particular times in the day when the number, headway and manner of operation of the locomotives presented a better opportunity for the performance of the work, when there is no evidence that there was any more advantageous period of the day in which the work could be performed. Where in such a case it appears that the man engaged in cleaning the tunnel had worked for three -Rays without injury from the smoke and ■ gas, the inference, is that oh the occasion of th_e accident there was an unusual accumulation .-of. smoke and gas, and that this arose from . some action of fellow-servants stationed on the locomotives, for which the defendant was not liable.
    Rich, J., dissented.
    Appeal by the defendant, The Delaware,, Lackawanna and Western Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of March, 1911, upon the verdict of a jury for $3,000, and also from, an order entered in said clerk’s office on the 14th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      A. J. McMahon [W. S. Jenney and F. W. Thomson with him, on the brief], for the appellant.
    
      Albert E. Richardson [Stephen M. Hoye with him on the brief], for the respondent.
   Thomas, J.:

Plaintiff, in defendant’s service as a laborer for three years - and nine months, was on January 11,1908, overcome by smoke and gas in a tunnel, which was about one mile in length with a single track. The accident happened in the State of Pennsylvania, where defendant was incorporated. Was the plaintiff a resident of New York? Is the.defendant proven negligent ? Plaintiff, a subject of Italy, where his family has remained, after hoarding two years in Brooklyn, went to Stroudsburg, Penn.,- and remained during his service with the defendant, and in addition for ten or eleven months after his discharge from the hospital, where he was for fifty days. His absence was for nearly five years, with an .occasional visit to Brooklyn. He testified that he considered Brooklyn his home; that he went with intention to return to it, and adds: “I went away with the intention of working for two or three years and accumulating some money to send for my family and I could not do that. The Court: Then where did you intend to five ? The witness: At Brooklyn. ” The facts show that his actual residence was in Italy or at Stroudsburg. He went from Brooklyn, where he had no ties and no home, to a place where he abided for all the purposes of his fife and where he was when the suit was begun. His intention when he went is not shown even to have continued, and the plan of sending for his family and living in Brooklyn never matured after eleven years in this country. His place of residence should not be ascertained from a state of mind existing at a period so remote, as declared on the witness stand, when every outward act for so' many years speaks against it. The smoke and gas in the tunnel overcame plaintiff and one or more other workmen. They began cleaning the tunnel on January eighth, and were on the third day of the work when, about four p. M., the oppression was sufficient for the injury. The plaintiff noticed gas from the day of going in. The peril seems to have arisen during the afternoon of the third day. I do not find the facts on which the jury justifiably found the master’s neglect to furnish a safe place to work. The jury by permission seem to have summoned their own knowledge, if any they had, as to the proper time and manner of doing the work and the prudent passing of trains. In view of the recognized meagemess of the evidence, or, I would say, the total absence of relevant and instructive evidence, the court indicated recourse to what was deemed common knowledge. That is the real question. (Could' the railroad company, by the exercise of reasonable care, have sent him in there to do this work -under conditions of greater safety.) The railroad company had twenty-four hours in which they could have done that work in that tunnel. There were times when the trains moved with less headway, and times when they moved with greater headway. There is a way of handling locomotives, as we all know, so they give out a great deal of smoke, or they do not. All those things are facts which you may consider.” But'handling the locomotive is work of operation that falls to the engineer and fireman, and such persons were the fellow-servants of the plaintiff. Hence, their fault or merit is not relevant in an inquiry related to a duty of the master.' Could the work by the master’s direction have been done within periods when the trains passed with less frequency ? The work extended through several days. Could it with less danger have been done at night, or in the morning, or at midday, or in the afternoon ? I find no evidence that furnishes data for selection of some fraction of the day, The last train before the accident was “about three o’clock or ten minutes after three or quarter after three. Then there was no other trains up to the time I fell down.” So the plaintiff testified. He was hurt at four or quarter to four. Later he says: “Trains passed every five minutes, every ten minutes, every quarter of an hour, every twenty minutes.” Another witness stated that eight or nine trains passed during the afternoon. There is no evidence that trains within the twenty-four hours passed more advantageously for the work, and what private knowledge the jury had of the matter cannot be conjectured. It is apparent that for the three days up to the time of the accident the men worked safely. Hor does it appear that such an oppressive condition had ever before arisen. The just inference, then, is that there was an unusual accumulation of smoke or ,gas during the afternoon from one or more locomotives. But that arose from some action of fellow-servants on the locomotives, and even if they were at fault for it the defendant is not liable. •

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Carr and Woodward, JJ., concurred; Bich, J., dissented.

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