
    Charles Obenland, Appellant, v. The. Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    June 29, 1908.
    ' Railroad—negligence — collision — mistake in judgment — contributory negligence.
    A truckman had backed his truck down to. his employer’s platform to unload. The platform was close beside a railroad track. The place was used as a public street to the knowledge of the railroad company and the truckman was rightfully'there. The truckman’s employer paid the railroad company rent for the' use of part of the platform. While the truckman was unloading, a train of five Cars came down the track with the motoman on the rear car, so that he could not see objects ahead. The train collided with the truck, which was too . near the track, injuring the truckman.
    
      Held, that it was error to dismiss the complaint at the close of the plaintiff's case;
    That a railroad, knowing that people are likely to be upon its tracks at a certain point, is under a duty to manage its trains with reference to that .knowledge;
    That a mistake in judgment is not negligence, and the truckman was not guilty of contributory negligence for continuing work in a place which, after making observations, he had supposed to be safe.
    Woodward and Gaynor, JJ., dissented with opinion.-
    , Appeal by-the plaintiff, Charles Qbenland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of December, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term. •
    
      Henry Hirschberg, for the appellant.
    
      D. A. Marsh [ George D. Yeomans with him on the brief], for the respondent.
   Miller, J,:

I think that the principle involved in Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289) and in Byrne v. N. Y. C. & H. R. R. R. Co. (104 id. 362) is applicable to this case, and that the case of Keller v. Erie R. R. Co. (183 id. 67) is not in any respect analogous.

The Barry and Byrne Cases {su/pra) involved accidents at crossings of- a steam railroad which the defendant had for many years suffered the. public to use. In the case at bar we must assume (the plaintiff was nonsuited) that the accident occurred at a place which was used as a public street to the knowledge of the defendant. The place was known as Railroad avenue, and while the plaintiff’s counsel was showing by a witness that the place was used as a thoroughfare the court interrupted the examination with the statement, “ your client was clearly there by consent.” A platform had been built, partly by the defendant and partly by the plaintiff’s employer, between the defendant’s tracks and the brewery, and the plaintiff’s employer had paid the defendant rent for the use of a part of said platform, and I think the evidence warrants the conclusion that he was paying rent for some part thereof at the time of the accident. The plaintiff had been accustomed to use this platform, as he was using it at the time of the accident, for three years, and the plaintiff’s employer had been in the habit of using it for thirteen years. The plaintiff, then, was more than a mere licensee casually upon the defendant’s premises. He was rightfully, with the knowledge and consent of the defendant, in a place which in appearance and use was a public street and where the defendant knew that he or others were likely to be.

There was evidence from which a jury might find that the defendant was negligent. The defendant’s motorman was in the motor box on the rear car of a five-car train, where he could not see objects with which his train might collide. The. situation is not the same as though the train was being backed up in the defendant’s railroad yard. I think, as' between the plaintiff and the defendant, Railroad avenue should be regarded as a public street, and the defendant, knowing that people were liable to be upon its tracks, was under a duty to manage its trains with reference to that knowledge. It may be inferred that the motorman would have seen the dangerous proximity of the plaintiff’s wagon to the track had he been in the front car, because a man in the front car perceived the danger of a collision and unsuccessfully attempted to ■ warn the motorman.. The defendant could not assume that people using Railroad avenue would at all times be out of the way of its trains. It was necessary for the plaintiff and his coservants to : drive upon the tracks in order to back the wagons around to be 'unloaded. The defendant knew this and, of course, knew that a train might suddenly come - upon one of. the men before he could get his horse and wagon off the track. I do not think the defendant could run its trains . through Railroad avenue without any regard whatever’ to the knowledge which' it had of the use of Railroad avenue by the public and particularly by the plaintiff’s employer.

It cannot be said as a matter of law that the • plaintiff wa's guilty of contributory negligence. He had cramped' his wagon so. that, as he supposed, the horse and wagon, were in a position of safety. The fact that he did not make further observation during the ten minutes before the accident does not warrant a holding that he was negligent as matter of law. Either the plaintiff was mistaken in judgment, or by a slight movement of the horse the wheel had been turned too near the track for safety, but a mistake in judgment is not negligence, and I do not think that one can be said to ■ be negligent as matter of law for continuing work in a place which he supposed after making'observation to be safe. It seems to me that on this branch of the case the evidence is much more favorable to the plaintiff than was the evidence in the case of Black v. Staten Island Electric R. R. Co. (40 App. Div. 238). In that case the plaintiff supposed that his wagon was in- a position of safety, but did not look to see; but it was held that the question of his negligence was for the jury. This is not like the case of Volosko v. Interurban St. R. Co. (190 N. Y. 206). In that case the plaintiff was working where he knew he would be hit by an approaching car, and made no observation whatever to discover the approach of the car.

We think there was sufficient evidence on both questions to take the cake to the jury, and that it was error to nonsuit.

Jenks and Rich, JJ., concurred; Woodward, J., read for affirmance, with whom G-aynor, J., concurred.

Woodward, J. (dissenting):.

The facts which may be deemed to have been established by the plaintiff’s evidence, so far as they are material to the decision in this case, are as follows: The plaintiff was employed by one Kent at Coney Island in drawing beer barrels, loaded and empty. He made use of one horse and a light beer wagon for this purpose. Kent’s brewery, as it is known, is located on West Twelfth street, Coney Island. Railroad avenue crosses West Twelfth street at this point, and along the Railroad avenue side of the brewery is a platform used for handling the Kent brewery barrels, etc. Railroad avenue is not a public highway; it is the defendant’s private right of way. Between the platform and the defendant’s tracks is a space about twelve feet wide on West Twelfth street, running back along Railroad avenue for about fifty feet, where the space is reduced to about nine feet. The plaintiff, on the day of the accident, had backed his wagon down into this space, as had been his custom for two or three years, for the purpose of unloading empty beer barrels. His wagon was" backed into the■ narrowest part of the space, the horse facing toward West Twelfth street, and the plaintiff testified that he supposed he had left sufficient space between his wagon and the tracks for the passage of defendant’s trains, with the operation of which he was entirely familiar. He says that on this day he located his wagon, got down behind the same, and was engaged ■ in unloading the barrels upon the platform; that he had been thus engaged for a period of about ten minutes, without making any effort to ascertain whether the defendant’s trains were in sight, and that the first he knew of the presence of the train was when the forward wheel of his wagon was struck and the wagon was crowded over upon him, causing his injuries. It appears that the defendant operates.its cars from Hew York to Luna Park in groups or trains, the motorman operating them from a motor box in the front of the forward car; that the train causing the injury' had come down from Hew York, had discharged its .passengers at Luna Park, and then ran' down past the brewery on the track next to the open -space occupied by the plaintiff, for the purpose of passing over a connecting switch to the track used in returning to Hew York, and in passing the plaintiff’s wagon the step of the forward car, which projected over the tracks about two feet, hit the hub of the wagon, causing the injury.

íhe negligence complained of is that the motorman, instead of remaining in the forward car of the train, and operating the same over this switch from the front, took his position in the rear car and backed the train down over the switch, that he might be iii the head of the train when it came out on the main track. The evidence shows that there was a man on the front car, who gave warning of the threatened collision, which the motorman either did not hear or disregarded, and it is argued that the defendant was guilty of neglect in thus operating its train. , It. is. to be remembered, however, that the defendant at the time was not operating a passenger train in a public highway; it was upon its own right of way, practically in its own railroad yard making up its train for the return trip, and it had no reason to anticipate that any one upon the premises as a mere licensee would so far disregard its rights as to get in the way of the regular operation of cars. It is true that the plaintiff had long used this open space for the purpose of unloading barrels', but it is equally true that he had, during all of the time, kept his horse and wagon a sufficient distance from the tracks to obviate the danger of 'collision, and there was concededly room enough for doing this on the occasion of the accident. The plaintiff says he thought lie had done so, and it is evident from the fact that only the projecting step collided with the projecting hub of the wagon that the wagon was far enough away so that only an accurate and close observation would have discovered to the motorman that there was danger! Was it, in view of the circumstances) negligent on the part of the defendant, as against this. plaintiff, to back its cars over a private right of way for a short distance ? We hardly think so; the case would seem- to be one where the duty of the defendant was merely to avoid wantonly injuring the plaintiff, for there was a clear right on the part of the defendant to assume that its right of way would not be obstructed without being given some notice at least of such obstruction. (Keller v. Erie R. R. Co., 183 N. Y. 67, 72, 73, and authorities there cited.))

But if this were fairly open to doubt, we do not think the plaintiff has affirmatively shown that he was free from • negligence contributing to the accident. He knew perfectly well the method of operating the defendant’s trains; he knew that the space was only three or four feet wider than his wagon; that the cars projected over the tracks for a considerable distance, and that the hubs of his ' wagon reached out beyond" the general outlines of the same; and yet he tells us that after looking to see if there was a train in sight he got down behind the wagon, out of sight of the tracks from the direction in which a train would come, and for a period of ten minutes made no effort to discover whether he was in danger or not, and that the first he knew of the danger was when the wagon was struck and turned over on him. He certainly had as much of a duty to be looking out for regular trains and the regular mode of operation while in that position, as the motorman had to be looking .out for the presence of a truckman, who might or might not be there at any given time, and having placed his wagon where it was not obviously encroaching upon the passageway of trains, it was hardly meeting the requirement of showing reasonable care for him to get behind the wagon, out of sight, and for a period of ten minutes to rely wholly upon the motorman to so operate his train as not only not to hit the wagon but not to injure him. There was nothing to indicate-, to the motorman that any individual was in danger, even though he might have seen the wagon ; so far as the situation would have presented itself to the motorman, had he been on the front car there would have been a horse and wagon fronting him, with the wagon itself far enough away to avoid a collision, with no great danger to be apprehended from a bumping of the car step with the hub of the wheel, if the space was not in fact sufficient to permit it to pass, for there was no one in sight, and yet we are asked to hold that the plaintiff’s evidence was sufficient to warrant a jury in holding that he had been free from negligence contributing, to-the.accident. We are of opinion that the evidence did not reach this- point, and that the trial court was justified in granting a nonsuit..

The judgment appealed from should be affirmed.

Gayuor, J., concurred.

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