
    Mary Brady, as Administratrix, etc., of Patrick Brady, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    June 29, 1908.
    Bailroad — injury to foreman on tracks — duty to employ watchman — contributory negligence?
    A railroad company is not negligent in failing to employ a watchman to warn an experienced foreman of approaching trains in an open cut, where he was engaged in directing the installation of electric wires, where there is a space of over seven feet between the parallel tracks and a space of nearly six feet from the tracks to the retaining walls of the cut, and the foreman asked for no such protection and himself had authority to employ and station Watchmen.
    Such foreman, killed by a train, was guilty of contributory negligence in walking on the tracks when his work did not require him to do so, where there was a space of over seven feet between the tracks and another space of nearly six feet from the tracks to the retaining wall, in either of which spaces he would have been perfectly safe.
    Miller, J., dissented.
    Appeal by the defendant, The Hew York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester oh the 7th day of. December, 1907, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 7th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. Brennan, for the appellant.
    
      Charles A. Collin [Abraham Oberstein with him on the brief], for the respondent. ;
   Gaynor, J.:

The motion to dismiss should have been granted. The deceased was killed by being struck by the engine of an express passenger train of the defendant between 165th and 166th streets in Bronx borough, City of New York, while walking North along the tracks. There were four tracks numbered from 1 to 4 frbm the East side. Their general course was North and South. The two- on the East side were incoming and the other two outgoing trains. The inside two were the express tracks, and the two outside ones for local trains. The tracks were in an open, cut 53 feet wide and about 5 feet deep. On each side of it was a wall of masonry about 4 to 5 feet high. The distance from the East Wall to the East track was given by a civil engineer for the plaintiff as 5 feet 10 inches from mémory, he having lost the note he made of the measurement, and by the civil engineer called by the defendant as 5.95 feet from actual measurement. The distance between tracks was 7 feet inches. The plaintiff’s engineer sayske took it for granted that it was. 7 feet.

The deceased was a foreman. Work was being done along the masonry of the side of the cut to set in tubes or wires for electricity. . The defendant was changing its motive power to electricity coming into the city. The deceased went into the Cut with two masons to show them work to do. They walked along the track to 165th street, and he pointed out how the- stone on the abutmbnt of the street bridge overhead there was to be cut out. They then continued along toward 166th street to locate other similar work. They. were walking on track 2 when the accident happened. They had to be on keen lookout all the while for the frequent trains going both ways. About midway between 165th and 166th street they heard and then saw a train coming toward them. As soon as they saw it was on track 2, on which they were walking, they jumped off, but the deceased was not out of the way quite quick enough, and was struck by the side of the locomotive and killed. The tracks curve from between 164th and 165th street to 167th street, or further. The companions of the deceased testified that while they could see the train coming about a block and'one half away — 300 feet or more—it was impossible to tell which of the two tracks it Was on until it was about 40 yards away; that beyond that distance the tracks seemed to melt together and grow indistinguishable. The civil engineers called by the plaintiff testified from actual experiment and measurement, one that the train could be seen to be on track 2 205 feet and the other 210 feet away. The train could be seen coming about 900 feet' away.

The point of negligence submitted to the jury was whether the defendant should not have had a watchman on the wall to warn the deceased of the tracks trains were approaching on as he walked along from block to block to point out the work to be done. He was an experienced railroad man, and a foreman, but asked for no such protection. More than this, he did not need to, for he had authority to. employ and station flagmen or watchmen himself, as it is the duty of foremen to do to protect their mén on railroad tracks. Evidence was allowed of persons who had theretofore seen such watchmen on the walls with whistles and megaphones to warn gangs of men working on the tracks of approaching trainsbut that was not this case. The deceased and his companions were not working on. the tracks, nor were they going to. They were walking along the tracks for the purpose of locating work to be done on the walls on either side. ' Moreover, they had no occasion to he on a track and in the way of. a train. There was a space of 7 feet 8J inches between tracks and another of nearly 6 feet from the East wall to the first rail, in either of which they would have been perfectly safe. The deceased was negligent, and the defendant omitted no duty to him.

The judgment and order should be reversed.

Woodward, Jenks and Bien, JJ., concurred; Miller, J., dissented.

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