
    Mary E. Bruck, as Executrix, etc., of Frank J. Bruck, Deceased, Appellant, v. New York Central and Hudson River Railroad Company, Respondent.
    Third Department,
    January 6, 1915.
    Master and servant—negligence — death of employee in roundhouse — contributory negligence—release of cause of action by sole next of kin of decedent, after assigning his interest to the administratrix.
    In an action to recover for the death of an employee in the defendant’s roundhouse, it appeared that the decedent was struck and fatally injured by a locomotive entering the roundhouse; that the decedent did not hear the approach of the locomotive, and no warning was given. Held, on all the evidence, that the contributory negligence of the decedent was a question for the jury.
    Where, in an action against a railroad company to recover for the death of an employee, it appears that the decedent’s brother and sole next of kin assigned his interest in the litigation to the plaintiff, who is the administratrix of the decedent, and that thereafter during the pendency of the action, the defendant obtained from the brother a release of all his claims upon payment of $250, it was reversible error for the court to allow the brother to swear that he considered the sum $250 as in full satisfaction and payment of any pecuniary loss sustained by him as next of kin of the decedent.
    
      Since, under the statute, the cause of action belonged to the administratrix the brother could not terminate it and throw upon the plaintiff the costs, and cause her to lose moneys advanced for funeral expenses, etc.
    Smith, P. J., and Lyon, J., dissented, with opinion. •
    Appeal by the plaintiff, Mary E. Brack, as executrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 29th day of May, 1913, dismissing the complaint upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of May, 1913, denying the plaintiff’s motion for a new trial made upon the minutes. '
    
      N. Frank O’Reilly [William H. Grogan and John T. Loughran of counsel], for the appellant.
    
      Amos Van Etten, for the respondent.
   Kellogg, J.:

The plaintiff’s testator was at work in the defendant’s roundhouse at Ulster. His duties, among other things, were to take the oil cans off the engine into the oil room, fill them with oil and put them back, and to fill the headlights. He was engaged on the night in question at the door of the roundhouse, near the track, polishing his oil can. He had placed the lighted torch in the latch of the doorpost and was wiping his can with waste against the post with his back partly towards the turntable which was south of the door. Defendant’s locomotive came upon the turntable. A man with a lantern signaled it when to leave the turntable and preceded it as it went into the roundhouse. It was usual when the locomotive left the turntable to enter the roundhouse to blow the whistle so that those inside would know of its approach. There was more or less noise around the building. The testator did not hear the approách of the locomotive. The man walking ahead of it gave him no warning. Upon looking up he saw it nearly upon him. He tried to get out of the way, but was crushed against the door and received injuries which resulted in his death. He had a certain right to expect that the whistle would blow as usual and that he would thus receive notice that the locomotive was entering the roundhouse. The question of contributory negligence was a fair question for the jury. We cannot say as a matter of law that he was not entitled to recover.

His sole next of kin was his brother, who assigned his interest in the litigation to the plaintiff, who is the administratrix of the decedent’s estate. Apparently the assignment was not intended to transfer the entire beneficial interest in a recovery to the plaintiff, but was for convenience in prosecuting and collecting the claim. Thereafter, and during the pendency of the action, the defendant obtained from the brother a release of all his claims upon payment of $250.

The plaintiff had paid an undertaker’s bill of $166.50 and had paid other expenses incident to the injury and the litigation. The court charged the jury that if the assignment was an absolute assignment, then the release was of no effect; on the other hand, if the assignor thought he was giving a piece of paper to her so she could settle the action for his benefit, as he claims, then he had a right to release the cause of action for his damages, and it has been released except so far as it might cover the funeral expenses and the other disbursements incident to the injuries. It then permitted the jury, in case it found the assignment valid, to treat the $250 in mitigation of damages.

Under the statute the cause of action belongs to the executrix. The brother, however, was entitled to the beneficial interest in the recovery after payment of the reasonable expenses of the action, the reasonable funeral expenses and the commissions of the executrix upon the residue. (Code Civ. Proc. §§ 1902, 1903.) No act of the brother, therefore, could terminate the action and throw upon the plaintiff the costs and cause her to lose the expenses of her action and the funeral expenses. The brother whd executed the release was a witness upon the trial and was permitted to answer this question: “ Q. Mr. Bruck, did you consider that amount, $250, in full satisfaction and payment for any pecuniary loss sustained by you as next of kin of Frank J. Bruck, deceased % * * * A. I did.” This was error; for, if he had received full satisfaction and the actual damages did not exceed $250, it required a verdict for defendant. In the most favorable view to the defendant the payment to Brack might be considered as mitigating any damages after payment of the reasonable expenses of the action, funeral expenses and commissions. It is very probable this ruling may have caused the verdict to go against the plaintiff.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event, unless the defendant stipulates that judgment may be entered for such expenses and commissions. If such stipulation is filed and the amount to be paid cannot be agreed upon, application may be made at a Special Term to have the amount determined. If such stipulation is made, the judgment is modified accordingly.

All concurred, except Smith, P. J., dissenting in opinion, in which Lyon, J., concurred.

Smith, P. J. (dissenting):

This was a negligence case submitted to the jury, and in which the jury found that there was no cause of action. In my judgment it might well be held that the plaintiff as matter of law was guilty of contributory negligence. He was going along right by the side of a tremendous engine, of the presence of which it was impossible for him to be unconscious, and by carelessly getting between that engine and the gate of the roundhouse he suffered injury. It seems to me idle to say that the engineer should have warned him, or should have blown a whistle, as the deceased was right there within a very few feet of the turntable, from which this engine must have steamed into this roundhouse. Moreover, his coemployee locked the turntable directly in front of the engine when it had made connection with the necessary track, and preceded the engine with his lantern into the roundhouse. But it is not necessary to hold that the deceased was guilty of contributory negligence as matter of law. The jury has found for the defendant under a charge which prohibited a recovery if either the defendant was found not to he guilty of negligence, or the deceased was found guilty of negligence contributing to the accident.

The prevailing opinion recommends that this judgment be reversed on the ground that the court committed error in allowing Mr. Joseph A. Brack, the sole next of kin of the deceased, to swear that he considered the sum of $250, the amount paid to him for a release in full, as in full satisfaction and payment of any pecuniary loss sustained by him as next of kin of Frank Brack, deceased. I am wholly unable to see why this was error. He had signed a full release of his right of action in consideration of $250. The legal presumption attaches that he considered the $250 as full compensation for the injuries for which he signed the release. But if the admission of the evidence were technical error, its effect was wholly compensated for by the charge of the trial court that a release signed by this next of kin would not release the cause of action for funeral expenses and other disbursements incident to the injuries. So that consistently with the charge of the court, the verdict of the jury of no cause of action must have proceeded upon a finding of fact either that there was no negligence on the part of the defendant, or that the plaintiff’s testator was guilty of contributory negligence. I, therefore, vote for affirmance.

Lyon, J., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless the defendant stipulates that judgment may be entered for the expenses and commissions, as per opinion; if such stipulation is made, the judgment is modified accordingly, and the judgment as so modified and the order affirmed, without costs.  