
    Lorenzo Matrusciello, Appellant, v. Milliken Brothers, Incorporated, Respondent.
    Second Department,
    December 30, 1910.
    Master and servant — negligence — injury to servant while crossing private railroad—failure to give signal — assumption of risk—Employers’ Liability Act — failure to promulgate rules — safe place to work — engineer on private railroad not vice-principal.
    Action against a master to recover damages for injuries received by a servant who when sent in the night time to fetch a shovel from a pit on the premises of the master was struck by cars used by the master to transport materials to a factory. Evidence examined, and held, that a j udgment entered on a nonsuit at the close of the plaintiff’s case should be affirmed.
    In an action at common law for injuries so received the plaintiff must be deemed to have assumed the risk even if no signal was given before the train which struck him was moved, where it appears that he had worked about the place for fourteen months and that twice a week for six months he saw trains coming and going in the flight time and knew that they were started without signal of any kind and .where he sawr the cars on the track before attempting to cross.
    In a common-law action the question of assumption of risk is not necessarily for the jury.
    The failure of a master operating a private railroad to promulgate rules requiring signals to be given when trains are. started and stopped is not within the scope of the Employers’ Liability Act.
    A servant injured by cars operated on a private railroad while crossing it for the purpose of getting a tool is not entitled to recover on the theory that the master failed to provide a safe place to work.
    An engineer on such private railroad used to convey material in the yard of a factory is not a vice-principal within the scope of section 42a of the Railroad Law.
    Rich, J., dissented.
    Appeal by the plaintiff, Lorenzo Matrnseiello, from a judgment of the Supreme Court in favor of the defendant, entered in the office of tlie clerk of the county of Richmond on the 17th day of June, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Richmond Trial. Term, and also from an order-entered in said clerk’s office on the 2d day of September, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      ■ Thomas J. O' Weill [Leonard F. Fish with 'Mm oh the brief], for the appellant.
    
      F.: Clyde Sherwood [Frank Verner Johnson with him on the brief], for the respondent. • .
   Jicnks, J.:

The servant Was dismissed at the- close of his, case against his master, on the ground that he had not made out a case- under the Employers’ Liability Act, or. Under the common law. The learned trial court also held that the- notice served under the said act was insufficient,' although we had by a divided court, held' otherwise (129 App. Div. 661). .The court thought that the dissentients expressed the law correctly, in view, of the decision in Finnigan v. N. Y. Contracting Co. (194 N. Y. 244), which was published after our judgment. But in view of the. latest decision of the Court of Appeals- in Logerto v. Central Building Co. (198 N. Y. 390), I think that our decision was right and for the reasons. expressed in the opinion of Miller, J. .....

' .The plaintiff had vvorked for the defendant for 14 moúths¿ and in the night time for 5 or 6 months of' that period, in the yard of an iron plant. About 1.0 :30 p. m. of April 22; 19Ó7, he was seeking for a shovel and was told by his foreman to fetch one from the. limestone pit. There were railroad 'tracks-between the place where the plaintiff was at Work and'the limestone- pit. The tracks Were used by the defendant for carriage 'of iron -from a- crane to its factory. The version of the -plaintiff -is that as he started he saw cars standing still on the track, which, he crossed by passing around an end of a car, that he found the shovel and that as he returned he saw again the cars, that he looked to see if there was a locomotive attached' to them , but saw none, and that, as he attempted to recross the,tracks - around :an end of the cars, the cars were moved so that he was struck and thrown -to the ground. The contention of the learned counsel for the appellant is that the case should-have been submitted to 'the- jury because they would have been justified in-finding negligence in the omission to make a rule requiring that-trains should not be started until after the ringing, of á bell to give warning to the employees working at night in or about the tracks, or that, if they did make -such a rule,'they permitted it to fall into. disuse. The plaintiff called the engineer of the locomotive, and elicited from him. that, although no rules were given to him, he worked the cars in exactly the same way as on every railroad so far as signals were concerned, and that the standard rules required the starting of engines after a signal was given "by the brakeman, and the bell was rung. I may add that on cross-examination the witness testified that the bell was rung and the whistle blown on this occasion after a signal from his brakeman, although I shall not consider this testimony on the question of the correctness of the dismissal of the complaint. The plaintiff testified that as he was “passing — I wasn’t only a distance of about so much, about three feet — Q. (Interrupting.) About three feet they started up, did they? A. Yes, just as soon as I was passing it struck me right off. I was right on the track ” when they started up, etc. Thereafter this question was asked: “ Q. And when they started up in this way when you were only about two or three feet in front of them, was any- signal of any kind given'? * * * A. No signal. Q. No bell rung or whistle blown ? A. After théy brought me on-the locomotive then it began to ring, the bell.” Testimony that " no signal was given when the plaintiff was within two or three feet is not testimony that no signal was given at all. But in any event, so far as the common-law right of action is concerned, I think that, even if no signal was given, the testimony establishes 'that the plaintiff assumed the risk of the situation. He testifies that he had worked about bliis place for 14 months, and for a considerable period in the night time, that in the night time he saw the trains going and coming, that • they started without any signal of any kind, and that he had observed this twice a week for 6 months. He also testifies that he saw the cars on the track when he passed over the rails and that he saw them again when he set out, to return. In Caron v. Boston & Albany Railroad Co. (164 Mass. 523) the court say: “ There is nothing to show that it had not been customary to switch cars on to tracks already occupied without warnings or signals save such as would naturally be given to one another by those engaged in the work during the whole time that the plaintiff’s intestate had been working in the yard, which, as'his widow testified, was two years and four months.. It does not appear that any change had been made in the mode of doing the business so as to make it more dangerous after he entered the defendant’s service. The law is well- settled that, under such circumstances, the servant assumes the risk of such dangers as ordinarily are connected with the service' in which he is engaged. He enters the business as it. is, and cannot be heard to complain that it might have been made sáfer, or that it was conducted, in a hazardous manner. (Goodes v. Boston & Albany Railroad, 162 Mass. 287, and cases cited; O'Maley v. South Boston Gas Light Co., 158 Mass. 135.)’”- The circumstances are. stronger' in the case at bar, inasmuch as the, plaintiff testifies affirmatively that no signals were employed. In -the common-law aspect of the case the question of assumption of risk is not' necessarily one for the jury. (Bushtis v. Catskill Cement Co., 128 App. Div. 780, and authorities cited.)' So far as liability, tinder the Employers’ Liability Act is concerned, the alleged failure to promulgate rules is not within its scope. (Davenport v. Oceanic Amusement Co., 132 App. Div. 368; l.Dresser Employers’ Liability, 318.) -And neither the action of Brown, the foreman, nor that of the engineer, fastens liability upon the defendant. The case does not present the question - of providing a safe place to work. For aught that appears, the. plaintiff, at work in a perfectly .safe place, was told where he could go to find a shovel, and crossed the tracks only for that purpose. Certainly Brown, who appears as a foreman, had no higher duty to perforin for the master than had the master himself. In Di Napoli v. N. Y., N. H. & H. R. R. Co. (136 App. Div. 334) we have recently held that when a workman was sent on an errand across a railroad track, near which he was at work, to get a tool, there- was no duty cast upon the' master to have someone .to -watch and warn the plaintiff against oncoming trains, the court, per Burr, J., saying: “ To hold that because a workman, Whose place of' work was perfectly safé, was occasionally sent on an errand across a ráilróad track, under circumstances which did not require him to pay attention to. anything except his own safety while' crossing such ■ track, it was necessary to have some one to. watch and warn him of approaching trains would be an unreasonable burden upon the master. One might just as well contend that if a gang of men were engaged in work upon one side .of a street or avenue, and it became necessary to send one of them on an errand across such street, the master should detail -some one to keep watch and take care of him while he passed from one side of the thoroughfare to the other.” Moreover, there is no- evidence that Brown was a superintendent within the purview of the Employers’ Liability Act. ■ For aught that appears, he was but a fellow-servant. (See Abrahamson v. General Supply & Construction Co., 112 App. Div. 318, 321 et seq.) The engineer was not a vicé-principal within the scope of section 42a of the Railroad Law, as the defendant was not a railroad' corporation or the receiver thereof. He was not a superintendent. In McHugh v. Manhattan R. Co. (179 N. Y. 384), where the train was backed down tipon a workman, the court, per Cullen, Ch. J., say: “ Doubtless had the train been started by the engineer without a signal, or had the conductor or one of the guards improperly given-a signal for the train to move, it would have been the act of 'a fellow-servant and the defendant would not have been liable therefor.”

The judgment is affirmed, with costs.

Hirschberh, P. J., Bubb and Cabe, JJ.,- concurred ; Rich, J., dissented. - . ■

Judgment and order affirmed, with costs.  