
    Anthony Duffy, Respondent, v. George W. Linch, as Receiver of the Second Avenue Railroad Company, Appellant.
    First-Department,
    March 6, 1914.
    Master and servant—negligence — injury to nightwatchman while placing lanterns near railway track—failure to look for approaching car — contributory negligence —evidence—ownership of car.
    A night watchman, employed by a surface railway to place red lanterns on each side of the track to warn passers-by of repairs being made, who, while changing one of the lanterns, which had been properly placed and lighted, to a point about two feet from the track, was struck by the step of a passing car, is guilty of contributory negligence where it appears that after placing a paving stone on which to set the lantern and seeing no car approaching he failed to look again or take any other precautions for his safety, notwithstanding there was proof that upwards of sixty cars passed each hour.
    Evidence in an action by the watchman to recover for injuries sustained examined, and held, insufficient to establish that it was defendant’s car which struck the plaintiff, and that upon this ground, and also upon the ground of contributory negligence, the complaint should have been dismissed.
    Appeal by the defendant, George W. Linch, as receiver, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 5th day of August, 1913, upon the verdict of a jury for $1,000, and also from an order entered in- said clerk’s office on the 29th day of August, 1913, denying the defendant’s motion for a new" trial made upon the minutes.
    
      Charles E. Chalmers, for the appellant.
    - -, for the respondent.
   McLaughlin, J.:

On the 20th of March, 1911, the defendant, as receiver, was operating a surface railroad in Second avenue, Yew York city1. At that time certain repairs were being made to the track, and for that purpose paving stones had been removed from between and along the side of the tracks and piled around the elevated railroad pillars beside the tracks. The plaintiff, on the day mentioned, was employed as night watchman and went to work about five o’clock in the afternoon. His duties, in part at least, were to set out and keep lighted during the night ten red lanterns on each side of the track to warn passers-by of the repairs which were being made. These lanterns had been properly placed and lighted, but for some reason, between seven and eight o’clock, he changed the location of one of them by placing it in a clear space between two piles of stones, and at a point about two feet east of the north-bound track. He testified that he first placed a paving stone on the ground at the point selected, then put another one on top of it, and then placed the lantern on top of that, and was straightening up when he was struck from behind by the step of a north-bound car, which passed on without stopping; that he neither saw nor heard the car until he was struck, and that when he procured the first stone he looked, but for at least a block no car was in sight. There is no proof that he thereafter looked or took any precautions whatever for his own safety, notwithstanding the proof shows that upwards of sixty cars passed each hour. Where cars were passing as frequently as that the plaintiff had to exercise great care for his own safety. He was not only negligent in this respect but also in placing himself where he could be hit by a passing car. There was no necessity for his standing so near the track. He could have placed the lantern just as well by standing on the other side of the stones, and had he done so would have been in a place of safety and could not have been injured, even though he had not seen the approaching car.

The judgment cannot be sustained for another reason. The evidence is insufficient to establish that it was defendant’s car which struck the plaintiff. At the place where the accident occurred two separate and distinct lines of cars were operated over the same tracks, those of defendant, which were painted blue, and those of the Metropolitan Street Railway Company, which were painted green. The only evidence as to which company’s car hit plaintiff was the testimony of one witness, who stated that the car was painted green and had a Second avenue sign on it. Whether or not the cars of the Metropolitan Street Railway Company, which ran over this line, had a Second avenue sign on them does not appear, but if the car which hit the plaintiff were painted green, then the fact is undisputed that it was a car which did not belong to the defendant.

Upon both grounds, therefore, I think the motion to dismiss the complaint at the close of plaintiff’s case, and for the direction of a verdict in favor of the defendant at the close of the whole case, should have been granted.

The judgment and order appealed from are, therefore, reversed, with costs, and the complaint dismissed, with costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled won notice.  