
    Charles B. Wood, Appellant, v. The New York Central, and Hudson River Railroad Company, Respondent.
    
      Negligence — excavation by a railroad company of a trench encroaching upon the premises of a station agent — injury to the station agent by falling into the trench—when he cannot be charged, as matter of law, with knowledge of its existence— defense that he would probably have run into a switch even if the trench had not encroached on his premises.
    
    In an action brought to recover damages for personal injuries, it appeared that the plaintiff was employed as a station agent by the defendant railroad company and that he occupied a house and lot adjoining the railroad lands; that in constructing a derailing switch at the station the railroad company excavated a trench twenty-three inches deep and about, three feet wide; that the trench encroached upon the plaintiff’s premises for a distance of four feet and was located in the line of a passageway which the plaintiff was accustomed to use extending from the plaintiff’s front door to the station; that while the plaintiff was proceeding from his home to the station along this passageway after dark he fell into the trench and was injured.
    The plaintiff gave evidence tending to show the existence of certain obstructions which prevented him from seeing or knowing of the trench. It appeared that the derailing switch was located about 125 feet from the station and about 20 feet from the plaintiff’s house; that the plaintiff had been advised by the railroad company of the installation of the derailing switch and that under the rules of the railroad company he was charged with the general supervision of the property at and around the station.
    
      Held, that it was error for the court to dismiss the plaintiff’s complaint;
    That it could not be said, as a matter of law, that the plaintiff knew or should have known of the existence of the trench and was, therefore, guilty of contributory negligence in falling into it;
    That the defendant could not be relieved from liability upon the theory that the plaintiff would probably have run into the switch even if it had not encroached upon his premises.
    McLennan, P. J., and Williams, J., dissented.
    Appeal by the plaintiff, Charles B. Wood, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 27th day of May, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Jefferson Trial Term, and also from an order-entered in said clerk’s office on the 2d day of June, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      Fred B. Pitcher, for the appellant.
    
      Henry Purcell, for the respondent.
   Hiscock, J.:

This action was brought ;by plaintiff to recover damages claimed to have been sustained through falling into a trench constructed in part upon his premises by defendant while building a switch upon its road.

The plaintiff was nonsuited, and such disposition appears to have been made, and its correctness is now sought to be upheld, principally upon the grounds that plaintiff knew, or ought to have known, ■, of the existence of the trench into which he fell; and, secondly, that if such trench had not been upon his premises, but had been entirely upon the premises' of the defendant, he probably would have met this accident just the same, and, therefore, ought not to be allowed to recover. We think that the disposition of the case made by the learned trial justice was incorrect and should be reversed. '

Defendant had a station at what is known as Evans Mills or Evans.. Its tracks there run substantially east and west. Easterly of the station house a highway runs north and south. Adjoining the railroad lands upon the south was a house and lot occupied at the, time of the accident by the plaintiff. Plaintiff was defendant’s station agent at the place in question. Upon October 15, 1961, defendant through its employees had been engaged in putting, a derailing switch at what was known as the Lawton siding at Evans. In so doing it had constructed a trench twenty-three inches deep, about three feet wide and extending upon plaintiff’s premises about four feet. This excavation was located in the line of a passageway extending from plaintiff’s front door to the station house, winch he was accustomed to use in going back and forth between these'points.. There was also another pathway extending from the rear of his house to the station house, which he used part of the time. Upon the evening of October sixteenth, and after it had become dark, plaintiff had occasion in the course of his business to go from his house to the station house, and while proceeding along the first mentioned pathway or course of travel used by him, ran into the trench as it extended upon his premises, and sustained injuries which . occasioned the commencement of this suit.

It seems to be conceded upon the argument of this appeal that the jury had the right to find upon the evidence that defendant had without authority extended an open trench upon plaintiff’s premises and into which he fell. This being so, it follows that the jury would have had the further right to find that this conduct upon the part of defendant was wrongful and improper, and might be the > basis for a reeoveiy by plaintiff.

It is urged that plaintiff did not upon the occasion of his accident use that degree of care and caution in approaching the railroad tracks which generally and under ordinary circumstances should be used. We think that this, however, independent of any special considerations applicable to this case, was a question of fact for the jury.

But, as stated above, it is especially contended that plaintiff knew on ought to have known of the existence of this trench, and that for this reason he was guilty of contributory negligence. This contention is especially based upon two groups of facts appearing in the case. Upon October fifteenth defendant’s supervisor of bridges telegraphed from De Kalb to defendant’s trainmaster at Watertown that the derailing switch had been placed in the Lawton siding at Evans, and this telegram was sent to plaintiff at Evans, having indorsed upon it “ Note and return. F. E. M.,” and the plaintiff, upon receipt of it, indorsed thereon “ O. K. C. B. W.” for his initials, and "10-16 ” for the month and day. Plaintiff admitted upon the stand that the last indorsement was his, and that he knew what switch was referred to at the time. We do not think, however, that this telegram and this indorsement of plaintiff’s thereon charged him as matter of law with knowledge that defendant had dug a trench upon his premises or created the conditions which it is claimed' resulted in his accident. In a general way his indorsement of the telegram implied a knowledge that a switch had been put in upon this siding, but we do not think that either his indorsement upon the telegram or his duty as station agent, to which we shall hereafter refer, called upon him to personally inspect the location of the ■ switch and have knowledge of all of the details which had attended its location, and that it would be error as matter of law to charge him with such knowledge.

The second group of facts relied upon to charge plaintiff with knowledge of the conditions which brought about his accident are as follows: The switch in question was ¡>ut in about Í25 feet from the station and about 20 feet from the plaintiff’s house. The book of rules furnished by defendant to plaintiff and with which he must be assumed to have been familiar contained, among other things, the following:

They (station agents) will have charge of the business of' the Company at the station, all property connected therewith and all persons employed thereat.
“ Keep’ the station and grounds in proper condition for the comfort and convenience of patrons. * * *
See that the station is supplied with the necessary lanterns, flags and torpedoes, and that they are ready for immediate use. * * *.
“ They must know .all switches and frogs at their stations are in safe condition for use and that all signals are in proper working order. * * *.
Be responsible for the care and display of switch lamps * * * and see that they are lighted from sundown to sunrise.”

Plaintiff gave evidence with reference to certain obstructions which prevented his seeing or knowing of this trench, and by his evidence made his knowledge thereof a question of fact for the jury, unless he is, by virtue of the rules above quoted, to be charged as matter of law with such knowledge. We think again that the defendant’s contention in this respect is erroneous. Concededly such work as the construction of switches and the supervision of tracks was not in defendant’s line of duty, but was under the care and custody and control of another department of defendant’s road. In a general way the station agent was undoubtedly charged with general supervision of the property at and around the station. Under ordinary circumstances, as between him and the defendant, he was undoubtedly charged with the duty of knowing that the switches and signals were in working order around the station. But manifestly the rules upon this subject applied to switches and signals which were in .use and operation. Concededly the switch in question was- not in safe condition for use while it was being constructed, and we do not think that it can be said, at least as a matter of law,, that plaintiff was so charged with the duty of keeping watch of it while it was being put in and before it was completed, that it can be held that he knew all about its condition and the means and details which were being employed to get it into a condition where it could be operated.

Lastly, we do not regard the suggestion made by the learned trial justice in disposing of this case; that if this trench had not been upon plaintiff’s premises he undoubtedly would have run into defendant’s switch after he had proceeded further along, is a tenable ground for dismissing the complaint. We are not aware of any authority which has gone so far as to hold under the circumstances of this case that a defendant may be relieved of liability for a wrongful act'upon the theory" that even if it had not acted improperly, still the plaintiff probably would have got injured in some other way.

The judgment and order should be reversed.

All concurred, except McLennan, P. J., and Williams, J., dissenting.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.  