45 N.Y.S. 1083 | N.Y. App. Div. | 1897
On the 6th day of April, 1892, the,defendant was constructing its cable road on Third- aveniie, and. for that purpose was obliged, temporarily, to maintain a track on the westerly side of the west ■ down-town track.
At that date so much of the temporary track as is involved in this controversy branched from the regular track, between Eighth and Seventh streets, and "continued down the. avenue below-the point where the accident" occurred, which resulted.in the loss of life of plaintiff’s intestate: He was crushed between a moving car on the. temporary track and an iron girdel about thirty feet long which-.was tied to two iron pillars which .formed á part of the elevated railroad structure on Third av.entie. The -distance between this ■girder, and the nearest "rail-of the temporary track was about three feet. -For about twenty minutes before the accident happened .-plaintiff’s, intestate, Daniel 0. Sullivan, and between thirty and forty other men, were at wprlt in and about the temporary track in the immediate -vicinity of this girder. . The object.of their labor was to make it possible to use the temporary track for the movement of defendant’s cars down town. -Some of the men were at Work- lay.ing timber,, others, were, paving, and still others working-with pick and" shovel.. While they were thus at work a south-bound car-passed over the track; all of the: men who-were-at work in' front of this
The learned trial justice was unable to discover in the evidence any basis for a finding that this defendant had neglected to perform any duty which it owed to the plaintiff, and, after an attentive examination of it, we have reached the same conclusion.
A master is not bound to furnish an absolutely safe place for his servants to work in; indeed, it is impossible always to do so in works of new construction, but he is required to use reasonable care and prudence in providing such a place. Wherever this defendant omitted its duty it was for the plaintiff to point out, but she seems to us not to have succeeded.
Clearly it was not wrongful for the defendant to construct temporary tracks nor to construct them where it did, even if there was not sufficient space for a man to stand between the car body and the pillars, or the car body and the girder. It was not a part of the scheme of construction that a man should stand for the purposes of work between the girder and the car. The others did not do it; they got out of the way while the car was passing. Plaintiff’s intestate had the same opportunity, but he did not avail himself of it, why,, of course, we cannot say, but it is quite apparent that, according to his calculation, there was room for him to stand between the girder and the car while the car was passing, and he preferred to do it rather than to take the two or three steps necessary to get on the westerly side of the track, as did his associates. He had plenty of time to get out of .the way, for the only witness who tesfied about the speed of the car said: “ There was not anything to prevent him from going south of that girder; the car was coming along, walking on — coming slow.” It was, therefore, not the. fault of the driver, for he drove slowly, his horses walking. It is suggested that the fastening of the girder to the pillars created a pocket, into which the plaintiff’s intestate was allured, only to become a victim to a lack of foresight on the part of the defendant.
Assuming that the proposition asserted would be worthy of serious consideration if the defendant were responsible for the construction of the pocket, such a consideration is out of place on this review,
The judgment should be affirmed, With costs.
Van Brunt, P. J.,. Rumset,- O’Brien and Ingrauam, JJ., ; concurred. .
Judgment affirmed, with costs.