117 N.Y.S. 392 | N.Y. App. Div. | 1909
Plaintiff was employed by the defendant to assist in repairing its tracks. On the 9th day of July, 1907, he was engaged in working on the east-bound track near Pelham, taking up old ties and putting down new ones. Caneo Sabio belonged to the same gang of track repairers. It was the custom of the foreman of the gang to give warning to the workmen of the approach of a train by saying, “ Look out.” He instructed the men not to leave.the track until he warned them, and not to leave any tools upon the track. The penalty for disobedience was discharge. On the. day in question the plaintiff and Sabio were working side by side. Sabio had an iron bar under the rail and was sitting upon it trying to.loosen the rail. Plaintiff had his back, turned toward the direction from which the train was coming. A train approached and the foreman cried, “Look out.” Plaintiff stepped from the track, but before' Sabio had done so the engine struck the iron bar and pushed it “ against his belly.” Simultaneously something struck the plaintiff and lie was thrown down and rendered, unconscious. Sabio was killed. There was evidence from which the jury might have found that the train was so close to the men before a warning was given
So far as the defendant’s negligence is concerned two questions are presented :• First, was the failure of the foreman to warn the ' workmen of the approaching'train until it was.so close at hand that Sabio was unable to extricate the tool with which he was working and get out of the way before being struck, an act of negligence for ■which the defendant is responsible? Second, if so, was it the proximate cause of. the injury to the plaintiff ? No evidence was given of an express rule of the defendant requiring the foreman to give warning of approaching trains under circumstances similar to these. The fact that such warning was always given would justify the jury in believing in the existence of such a rule. If there was such a rule then the violation of it was some evidence of negligence.' (Whittaker v. D. & H. C. Co., 126 N. Y. 544.) If the act of the. foreman was a negligent act is the defendant responsible for it? At common law his negligence being'tliat of a fellow-servant of the plaintiff would not impose any liability on the common master. The complaint in this action alleges the service of a notice under the provisions of the Employers’ Liability Act. Upon the trial the only proof given was by way of an admission that notice of the accident was served. There was no proof of its contents nor as to the date of the service; The proof was, therefore, insufficient to establish liability under that act. But the common-law rule above referred to has been changed by the provisions of chapter 657 of the Laws of 1906, which added section 42a to the Eailroad Law (Laws of 1890, chap. 565). It provides as follows: “In all actions against a railroad corporation * * & doing business in this State, * * * for personal injury to * * * any person, while in the employment of such corporation, * * * arising from the negligence of such corporation * * * or of any of its "x" * * officers or employees, every employee * * * shall have, the same rights and remedies for an injury, *■ * * suffered by him, from the act or omission of such corporation * ■* * or of its * * "■ officers or employees, as are now allowed by law, and, in additio'n to the liability now existing by law, it shall be held in such actions that persons engaged in the service of any railroad corpora
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. ■
Woodward, Jenks, G-aynor and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.