
    William Benthin, as Administrator, etc., of August W. Benthin, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence —permitting a telegraph pole to stand dangerously nem' a railroad track, by which a fireman was struck while looking back to a car ha/oing a hot journal — previous acquaintance with the locus in quo — violation of a rule as to the fireman’s place on the engine.
    
    Where a fireman, on an engine of a railroad company, was killed, while looking out of the side of the engine for the purpose of ascertaining whether a journal on a car was smoking, by his head coming in contact with a telegraph pole of a telegraph company, which, although forty-nine inches from the track, measured on the ground, was, because of its leaning over, only about four inches from the side of the locomotive upon which the deceased stood, at a point at the height of his head, there being unoccupied land upon which the pole might have been set, twelve or thirteen feet away from the track, the question whether the railroad company was negligent in permitting the telegraph pole to stand in the position in which it did should be submitted to the jury.
    This is so although the deceased had previously passed the pole on many occasions, and notwithstanding the fact that the fireman’s proper place on the engine, under the rules of the railroad company, was on the left side and not on the right side of the engine, where he wTas injured.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 19th day of April, 1897, for $2,800.42, damages and costs, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1897, denying the defendant’s motion for new trial.
    
      Charles A. Pooley, for the appellant.
    
      S. E. Filkins, for the respondent.
   Follett, J.:

This action was begun November 20, 1895, to recover damages occasioned by the death of the plaintiff’s intestate, caused, it is alleged, by the negligence of the defendant.

From 1890 until July 8, 1895, the plaintiff’s intestate had been employed as a fireman on defendant’s freight trains running between Buffalo and Syracuse. At about twelve minutes past two o’clock in the morning of July 8, 1895, plaintiff’s intestate, while firing on a freight train running east on track No. 1 was killed by the left side of his head coming in contact with a "Western Union telegraph pole standing forty-nine inches south, measured on the ground, of the south rail of track No. 1, and about one-fourth of a mile east of the Fairport station. This pole formed one of a line maintained by the Western Union Telegraph Company for many years along the defendant’s right of way. Formerly tracks Nos. 1 and 2 were further north of the pole in question, but when the West Shore railroad was leased by the defendant it changed the location of tracks 1 and 2 so that the south rail of No. 1 was the distance above stated north of this pole. The platform of locomotive No. 727, on which plaintiff’s intestate was employed, extended beyond the rails, so that as the locomotive passed the pole the south or right hand side of it was from sixteen to twenty-two and three-fourths inches north of the pole, assuming that the pole was perpendicular. But the evidence shows that the pole, instead of standing perpendicularly, leaned towards the north, and it is asserted by the plaintiff, and there is some evidence to sustain the assertion, that the pole at a point as high above the ground as the intestate’s head was when he was standing on the platform of the locomotive was only about four inches distant from the south side of the locomotive.

It is alleged in the complaint that the defendant was negligent in permitting this pole to stand within forty-nine inches of the south rail of its track, which negligence, it is alleged, was the cause of the death of the plaintiff’s intestate. The evidence shows that the telegraph poles east and west of the pole in question were from twelve to thirteen feet distant from the nearest rail, and that there was sufficient unoccupied land, so that this pole might have been set twelve or thirteen feet from the track. The pole formed no part of any structure belonging to the defendant’s road and necessary for its operation, and the question is not the same as presented by the nearness of the sides of bridges and like structures to passing cars. I think that the evidence was sufficient to authorize the jury to find that the defendant was negligent in permitting this pole to stand in the position in which it did; that the defendant did not, in this respect, exercise due care to furnish a reasonably safe place for its employees to perform their duties. I am also of the opinion that the evidence was sufficient to authorize the jury to find that the plaintiff’s intestate did not by his own negligence contribute to the injury. The freight train in question consisted of about thirty or thirty-five freight cars leaving East Buffalo July Y, 1895, at nine-forty p. m., and bound for Syracuse. Shortly after leaving Buffalo a journal on the south or right-hand side of one of the freight cars became hot and required and received frequent examination and attention by the engineer and fireman of the locomotive. Defendant’s engineer was the only person who witnessed the accident, and he testified that the plaintiff’s intestate just before he was struck looked out from the right-hand side of the locomotive cab back towards the west, towards the-rear of the train, to see if the journal was smoking, and he reported that it was not, and that he looked again, and while looking was struck by the pole. It is asserted by the defendant that plaintiff’s intestate was not then engaged in the discharge of any duty imposed on him, and that by the rules of the service he was required to be stationed on the left-hand side of the locomotive, and besides firing to keep a sharp lookout ahead on that side, and that it was the duty of the engineer to look out on the right-hand side of the locomotive. These are the places assigned by the rules to the engineer and fireman, but I am unable to assent to the argument of the defendant that the intestate was outside of his duties, because, under the sanction of the engineer, he was exercising unusual care and attention for the safety of defendant’s train. The engineer was employed in ■running the train and in looking ahead, and it was not negligence, as a matte)' of law, for the plaintiff’s intestate to go to the engineer’s side of the train to see if the journal had again become heated. The fact could not be observed from the fireman’s side of the train because the heated journal was not on that side; and more, at this point the defendant’s tracks curved and the fireman’s side was on the outside of the curve, and the whole train could not be observed from his side.

I think the evidence was sufficient to authorize the jury to find that the plaintiff’s intestate was killed while in the discharge of his duty. It is urged that the intestate had passed this pole on many previous occasions. This is undoubtedly true. But whether he was negligent in not knowing how near to the track it stood, and bearing in mind the location of the pole and the train at the time he looked, was a question of fact for the jury. This pole was but one of many, the location of which could not be borne in mind by any •employee. This pole was not like a bridge or a station house — a structure — the location of which could not well be forgotten. The engineer of this train testified that though he had passed this pole many times before he had never observed how close it stood to the track, while another engineer called by the defendant testified that Re had observed its proximity to the track. Whether the night of the accident was so foggy and dark that objects could not be distinctly seen for any considerable distance was a disputed fact.

Under the rule laid down in Wallace v. C. V. R. R. Co. (138 N. Y. 302); in Fitzgerald v. N. Y. C. & H. R. R. R. Co. (88 Hun, 359), and in Ferren v. Old Colony R. R. Co. (143 Mass. 197), the questions whether the defendant was negligent, and whether the plaintiff’s intestate, by his own negligence, contributed to the accident, were for the jury, and its verdict should not be disturbed.

The judgment and order should be affirmed, with costs.

.All concurred.

Judgment and order affirmed, with costs.  