
    Frank Malizia, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    June 5, 1908.
    Railroad—negligence — injury to workman at intersection of tracks— contributory negligence for jury.
    A workman employed to repair the tracks of a steam railroad at a point where they' are crossed by the tracks '¡of an electric railway has a right to be upon the tracks of the latter road, and although he saw an electric car coming toward him about 150 feet away before bending down to work, his contributory negligence is a question for the jury. This, because he had a right to' suppose that he could continue work while the car was at that distance, especially as it was required by law to stop before crossing the tracks of a steam road.
    Appeal by the plaintiff, Frank Malizia, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 11th day of January, 1908, upon the dismissal of the complaint^by direction of, the court at the close of the plaintiff’s case upon a trial at the Queens County Trial Term.
    
      George F. Hickey [M. P. O’ Connor with him on the brief], for the appellant.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
   Gaynor, J.:

The' plaintiff and four others were at work repairing the tracks of the Long Island Railroad (a steam railroad), at the point where they are crossed by the tracks of the defendant (an electric street railway). They had to be iipon the track of the defendant, and by it, to do the work. As the plaintiff was bent down putting a plank in position by the rails a car of the defendant came up behind and hit him. He was right by the defendant’s track. Before he bent down he saw the defendant’s car coming about 150 fee't away. He was non-suited for contributory negligence. That was for the¡ jury. Men often have to work on car tracks, and with cars passing at irequent intervals they have to do the best they can to avoid danger and yet • do the work. ' The plaintiff may well have supposed that with the car so far away he could safely stay awhile yet, especially as the car was required by law to stop before crossing the tracks of the steam road.

The judgment should be reversed.

Woodward, Jerks, Bich and Miller, JJ., concurred.

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