211 N.Y. 79 | NY | 1914
The action is for personal injuries. The plaintiff was employed by the defendant as foreman of a gang of painters, about sixteen in number, who were engaged in scraping, preparatory to painting, an overhead steel truss bridge on the defendant’s main line a few miles west of Binghamton. The bridge consisted of six spans, each one hundred and sixty-four feet long, resting on piers. There were two tracks across the bridge. The space between the tracks from center to center of the guardrails was five and two-tenths feet. The floor beams or girders of the bridge were seventeen and eight-tenths
The decision of this case turns on the point whether it was the defendant’s duty to give the plaintiff seasonable warning of the approach of the passenger train. We are of the opinion that that question cannot be decided adversely to the plaintiff as matter of law. If one of the men under the plaintiff had been injured, the case would be plain. They could not do their work and be constantly on the lookout for trains. The plaintiff, while merely supervising the work at either end of the bridge, might be expected to keep a lookout. Indeed, it might be his duty to the men under him to do that or to provide for its being done, though the defendant does not appear to have given any instructions on the subject. But if, as occurred, two trains met on the bridge while he was attempting to cross it, he was in great peril unless seasonably warned. If his duties required him to cross the bridge, he could not stand about waiting for a delayed train or until sure that no train would arrive while he was upon the bridge. The trial court excluded evidence to show that he was not furnished a schedule of the running time of trains. The jury could have found that in the exercise of reasonable prudence the defendant should have foreseen that one of the men might be caught unawares in a place of danger on the bridge, and that the simple precaution of sounding the whistle would have guarded against accident.
The principle applicable to this case has been stated nowhere better than by Mr. Justice Rdmsey in Felice v. N. Y. C. & H. R. R. R. Co. (14 App. Div. 345, 347), wherein he said: “It is the duty of the master to use
What has been said disposes of the question of contributory negligence and assumed risk. If it was the defendant’s duty to give the warning the plaintiff was not negligent as matter of law in attempting to cross the bridge relying upon the assumption that it would be given.
Willard Bartlett, Ch. J., Werner, Hiscock and Hogan, JJ., concur; Chase, J., dissents; Collin, J., not sitting.
Judgment reversed, etc.