
    Sebastiona Dangelo, as Administratrix, etc., of Salvatore Dangelo, Deceased, Plaintiff, v. The Lake Shore and Michigan Southern Railway Company, Defendant.
    Fourth Department,
    July 7, 1908.
    Railroad t- negligence — employee struck by train — contributory negligence.
    Where the plaintiff’s intestate, who had worked on railroads for five years and for the defendant two months, was ordered to get a crowbar about 150 feet west of where he was working, from which direction a train was coming, and it appears that the tracks at that point were perfectly straight for two miles; that there was nothing to obstruct the view; that the morning was bright, and that a mere glance while crossing the track would have enabled him to see the train, and where he walked so near the track while returning with the crowbar that the train, running at sixty miles an hour, struck him, he was guilty of contributory negligence as a matter of law.
    McLennan, P. J., dissented.
    Motion by the plaintiff, Sebastiona Dangelo, as administratrix, etc., for a new trial upon a case containing exceptions, ordered to be heard, at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial. at the Erie Trial Term in May, 1907.
    
      Horace O. Lanza and Herman J. Westwood, for the plaintiff.
    
      Thomas D. Powell, for the defendant.
   Kruse, J.:

The plaintiff’s intestate was a workman on the defendant’s railroad. He was struck by a train and killed while working with twelve o1’ fourteen other men under the direction of a foreman. The men were engaged in tamping ties. The deceased was told by the foreman to get a crowbar, which was about one hundred and fifty feet away ; he walked toward the west, from which direction a train was coming, picked up the crowbar and was on his way back, but walked so near the track upon which the train was approaching that it struck him.

The train was running at the rate of about sixty miles an hour. The proof tended to show that the bell was not rung or the whistle sounded, but it was a bright. June morning; the tracks were perfectly straight to the west for a distance of about two miles or more, and there was nothing to obscure the view of an approaching train for that distance.

The defendant had worked on railroads for five years, and had worked for the defendant railroad at this kind of work for two months prior to his death. He was. entirely familiar with thé situation.

A nonsuit was granted by the trial court upon the ground that the deceased was not shown to have been free from contributory negligence. We think this disposition was correct.

There were four tracks at this point, extending east and west,.' numbered 1, 2, 3 and 4, commencing at the southerly side. The two southerly tracks were for west-bound trains, and the two northerly tracks for east-bound trains. ' The men were engaged in tamping the northern ends of the ties on track Ho. 2. The train was on track 3. The deceased was walking between tracks Hos. 2 and 3 when he was struck. It is suggested on behalf of the plaintiff that deceased was' required to walk as near track 3 as he did in passing the men. I do not think the proof shows this to be so. The distance between tracks 2 and 3 as shown by the diagram in. the case is eight feet three inches, and I think the inference is unwarranted that he was crowded near track 3 by the workmen engaged in tamping the ties.

. - But even if that be true the conclusion is irresistible that if the deceased had taken any precautions for his own safety, he would have known that the train-was approaching, and that he was in a place of danger. He knew that these fast trains coming from the west used this track. It seems reasonably certain that if he had looked, he must have seen the approaching train when he picked, up the bar, since it is reasonably clear .that- the train was then within a mile or a mile and a half, or perhaps less than that, from him, for he walked less than two hundred feet from that time, until he was - struck. And besides, when he picked up the bar, it was on the north side of track 3, between tracks 3 and 4. He was required to pass ovér track 3 and on his way toward the men picked up a piece of iron known- as a chair.'' A mere glance to the side when he was crossing the track or when he was picking up the iron would have enabled him to see the train, and it is not improbable that even as he was walking toward the bar the train was in sight. Beyond all that his work did not require him to walk on track 3 or so near it as to be struck.

It is not intended to suggest that a railroad workman is necessarily doing a careless act in walking near or between the rails of a track, although he may not be working upon that track. Tet, under the circumstances of this case, it seems to us that the deceased was clearly negligent in omitting to take precautions for his own safety and in doing what he did.

Much is made of the fact that the foreman failed to give the men timely warning of. the approach of the train. It seems that at the time he was down on his knees sighting along the track upon which the men were working, and while we do not say that reasonable care for the safety of the men who were absorbed in their work may not have required that timely warning should be given them, although the train was on the other track, yet it was also the duty óf the plaintiff to use reasonable care for his own safety. He was not engaged in work which so absorbed his attention as to prevent him from using his senses for his own protection. He knew, or should have known, that he was in danger in walking where he did.

It is contended by counsel for the plaintiff that the case of Rich v. Pennsylvania, R. R. Co. (112 App. Div. 818) is authority for his contention that a question of fact is presented as to whether the deceased was free from contributory negligence. We do not s.o regard it. In that case it appeared that the men were at work on the track at a street crossing. A train approached on the track upon which they were at work and a workman stepped from that track to another track to avoid the approaching train and was struck by a yard engine. While it appeared there that an engine could ordinarily be seen for a distance of 1,000 feet from the street crossing where the man was struck, it also appeared that there were high. winds, that it was snowing, and that the engine approached the crossing without giving the usual warning by bell or otherwise. That case is quite unlike this one. But even there it was held that the verdict of the jury was against the weight of the evidence. While one of the members of the court dissented another held that the injured person was guilty of negligence as a matter of law.

We think that, under the facts and circumstances of this case, the deceased was guilty of contributory negligence as a matter of law. The exceptions must, therefore, be overruled, the motion for a new trial denied, and judgment directed upon the nonsuit for the defendant, with costs.

All concurred, except McLennan, P. J,, who dissented.

Plaintiff’s exceptions overruled, motion for new trial denied, and judgment directed for the defendant upon the nonsuit, with costs.  