
    John Tomko, Plaintiff, v. Central Railroad Company of New Jersey, Defendant.
    
      Negligence—contributory negligence by a trackman, in, stepping from, one track onto another, instead of off of both tracks.
    
    Upon the trial of an action, brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the defendant was a track laborer who had been employed upon the defendant’s road for two years, but at the place in question for only a short time; that the accident resulted from the fact that a locomotive, after passing him in an easterly direction upon the east-bound track, went on to a siding, and returned in a westerly direction upon the same track, while at the same time a locomotive was approaching in the same westerly direction on the west-bound track; that the plaintiff, looking over his shoulder, saw the locomotive on the west-bound track, but did not see the other on the east-bound track, and in attempting to avoid the former stepped upon the east-bound track and was injured.
    
      Held,, that that he was chargeable with negligence; that if he had stepped off the west-bound track on the other side, where there was no track, he would not have been injured;
    That it was incumbent upon him to use all his faculties, and that he had not exercised proper care and could not recover.
    Motion by the plaintiff, John Tomko, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint directed by the court after a trial at the Queens County Circuit before the court and a jury on the 12th day of June, 1895.
    
      W. 0. Beecher, for the plaintiff.
    
      George Holmes and Robert Thorne, for the defendant.
   Hatch, J.:

The substantial claim made by plaintiff in his opening to the jury is that the defendant was guilty of negligence in running trains and engines over its tracks at the place where the injury occurred, in a reverse way from that in which trains were ordinarily run thereon at other places upon its line, without promulgating a rale relating thereto or otherwise bringing home notice to plaintiff of the existence of such a custom. In the view we take of this case it is not necessary to determine what defendant’s obligations were in this respect. Plaintiff was a track laborer; had been employed upon defendant’s road for a period of two yfears, but at the particular place of injury only a short time, and was without information of the aforementioned custom of operating trains, but supposed that they were operated at this place in like manner as at other places upon the line where he had before worked. While engaged in his employment, on the west-bound track, facing towards the west, a train passed him on the east-bound track. This tram ran to a siding a short distance beyond and shunted its cars thereon. The engine then started on its return over the same track that it had ran out on. At about the same time a train was running upon the west-bound track, and both engines ran nearly side by side on the different tracks in the same direction. Plaintiff hearing a bell on the locomotive, looked over his shoulder, saw the locomotive coming west, and stepped from the west-bound track to the east-bound track, where he was shortly after struck by the engine approaching upon that track and seriously injured. It does not appear that he looked in either direction when he stepped upon the east-bound track, or that he in any manner made any observation to protect himself from injury while upon this track. It is not apparent why he did not discover the approach of both engines when he looked to the east. They were both running near together, and it does not appear but that both were visible to the sight. No obstructions existed, and if he looked and saw one, care would have enabled him to see the other. At least no reason is shown why he should not have seen it. The law exacts care and caution, having regard to the dangers to be encountered. A person cannot place himself in a dangerous position, and omit the vigilance which would apprise him of the danger, without being chargeable with negligence. The use by plaintiff of his faculty of sight, exercised with' care, would have apprised him of the approach of both engines. ITis failure in this regard constituted negligence. It also appeared that there was a number of employees at work with the plaintiff who received no injury, and counsel stated that the north side (north of the westbound track) was the safe side, but that plaintiff went off to the south side. Here was a perfectly safe place where plaintiff could have stepped as easily as to make use of the dangerous place. He voluntarily chose the latter, and when he did so, it became incumbent upon him to exercise all his faculties to protect himself. The track of a railroad is a dangerous place, and when a person’s employment calls him to its use he is necessarily exposed to danger from passing trains, and is required to be upon the lookout in all directions. This is a risk which is necessarily assumed as an incident to his employment; and when he voluntarily exchanges a safe place for one of danger he assumes whatever of risk there may be, from any source, in the use of the dangerous place, and cannot be heard in complaint if he is thereby injured. (Heaney v. Long Island R. R Co., 112 N. Y. 122.)

And this result follows, no matter how or in what manner defendant uses its tracks or operates its trains.

The exceptions should he overruled, motion for a new trial denied and judgment ordered for defendant, with costs.

All concurred, except Cullen, J., not sitting.

Exceptions overruled, motion for new trial denied, with costs, and judgment directed to be entered in accordance with direction of the trial court.  