Lead Opinion

Spring, J.:

The plaintiff had been a conductor on the Gorge road, a trolley line operated by the defendant from Niagara Falls to Lewiston, and on September 3, 1899, while acting in that capacity and collecting fares on the running board on one of the defendant’s cars, lie was struck by another of its cars approaching on a parallel track from the opposite direction, was knocked off and thrown under the car, sustaining injuries resulting in the amputation of both legs below the knees. He was at the time twenty-nine years of age and had been in the .employ of the defendant as a conductor operating its cars on this road, which was only about seven miles in length, for thirty days, going over the road from twelve to fifteen times daily. These cars were open, for summer use by tourists, and consisted of thirteen seats, which extended entirely across the car without any aisle in the car, so that the running board was used by the conductors in the collection of fares. Each seat was supposed to hold five people when filled, and the car on which the plaintiff was riding at the time he was injured contained fifty-three people. The seats were somewhat close together, so that when one was occupied there was no space between the passengers and the seat in front and it was inconvenient and even impracticable for the conductor to crowd in front of them between the seats to collect the fares. The roof of the car was supported by posts which extended out from the body of the car three inches, and they were about thirty-two inches apart, and were placed at the ends of the seats. Iron handle bars were attached to these posts extending out also nearly three inches. Along each side of the car was the running board used by passengers in getting on and off the car and also by the conductor in the performance of his duties. The outside of the running board extended from the inside of the rail nearest to it twenty-four inches. On each side of the car and just inside the handle bars was a movable guard rail extending along the length of the car for the purpose when down of preventing passengers from alighting or getting on that side of the car. The road was a double track, and the *385plaintiff’s proof shows that at the point of the injury the distance between the inside rails of these parallel tracks was three feet ten inches, so that two cars could not pass at this point without their running boards overlapping. The witness John Peters, who was an •electrician and in charge of the line work for the defendant at the time of the accident, described the situation as follows : “ The distance was three feet ten, the inside distance between the two rails. That is the center of the rail, the ball óf the rail. I observed cars passing at that point at the time I was measuring the track. Differ■ent times I worked right there and I observed the men arguing over it. In testing it a man was working for me and got between the two cars and stood on the running board to let another car pass. I hollered at them to get out of that; they would get killed. The men had to get up in the car; they leaned up forward in the car between the two stanchions to let the car pass. I saw the two cars passing and I observed the distance they were apart. Two or three men stood between the cars and they had to get into the car to avoid being struck. I stood there myself ; I stood on the running board and I had to lean up in the car while the car passed.”

McGrath, who was a conductor of the defendant and was at the place where the injury occurred within two or three hours thereafter and measured the space between the tracks, testified: “ I noticed cars passing each other there ; I noticed the cars could pass "together, but the boards would lap ; the edges of the running board ■would lap over. One would be a little higher than the other, so "that it could just lap over the top. This handle bar was about two inches or two inches and a half out from these standards or posts. When the cars pass there a man couldn’t stand on the running 'board ; that is, not with safety. He could stand there and get the same as True got —his legs cut off. It would be impossible for him to stand there without being struck. The next afternoon I went there and measured. I had the point shown to me by the motorman that was on with True at the time, and the two of us took measurements. We measured in two different places there and "there was a variation of about two inches in the two measurements; •one place it was three feet ten and the other place three feet eleven.”

The usual space between the inside rails of these two tracks was *386five feet three and one-half inches, hut the witness referred to and others who measured the space at the point.of the accident testified that they were only three feet ten inches apart .where the accident occurred;-' Whatever the- actual distance was, the witness who made the experiments and observed others standing on the running board of one of these cars at this place testified that if a man were standing erect on this board he would be hit by a passing car.

It also appears that this narrow space continued only for a short distance, while along the rest of the route, except at the' cantilever bridge where the tracks came close together, there was ample space for two cars to pass -without injury to one standing erect on either running board, and the conductors did this constantly in -the performance of their duties. This close proximity of the tracks continued for about one hundred and sixty feet, varying from three feet ten inches to four feet four inches. The space between the handle bars of contiguous cars was about five or six inches, the witnesses varying somewhat as to the distance. Maps of the tracks were produced upon measurements made subsequently to the accident by engineers in the employ of the defendant/which show a.space in excess of the standard gauge tracks, but there is evidence adduced tending to show that immediately after the accident to the plaintiff these tracks were relaid and placed farther apart. This road was constructed close to the edge of the Niagara river and the perpendicular wall of rock which extended high above the river was blasted and cut off to make the roadbed, . Along where these injuries were inflicted some of the rocks jutted out from the face of the wall so that the conductor could not perform his duties on the running board next to this wall. On the day of the accident the plaintiff had started from Niagara Falls on the track nearest to the granite wall and was on the running board .next to the parallel track, collecting fares. It was his-duty to perform this, labor before reaching the .Buttery Elevator-Station which was the first stop in his northern trip and less than a mile from the starting point. He began at the front of the car collecting from, the passengers of each seat, and as he was north of the Steel Arch bridge, perhaps one hundred feet, was hit by'-a car going in the opposite direction and toward which his back was turned. He testified, and he is corroborated in .this, that he stood at the end of the seat and was collecting a fare,. One.witness, a passenger, tes*387tified lie was making change for a two-dollar bill which the witness had handed him in j>ayment of two fares. Witnesses on behalf of the defendant testified that plaintiff was swinging around one of the standards when he was struck. The motorman on the approaching car sounded his gong, but the proof tends to show this was a common thing and was not for the purpose of attracting the attention of the conductor of the other car. The roaring noise of the river in a measure drowned the sound of the gong, but the plaintiff if he had heard it would not have apprehended that the gong was ringing to warn him of the danger. It appears that in the month he had been acting as conductor he had always collected fares on the running board, meeting cars on every trip and there was no clashing, nothing to apprise him of' any danger. The proof shows also that before he commenced his service as conductor, he was instructed by a brother conductor named Snyder, who had been long in the employ of the defendant. The plaintiff testified, and there is supporting proof of this fact, that Snyder collected ‘fares on the running board and gave him no instructions that they were to be collected elsewhere, and what is more significant, Snyder performed his duties on the north-bound trip on the running board next to the other track instead of on the side nearest to the wall. There was a rope attached to a bell to register the payment of the fares and which it was his duty to pull upon" collecting each fare, and this rope was on the river side of the. car and not accessible from the running board on the opposite side of the car. The proof shows that the guard rail was down at the time the car started from . Niagara Falls to prevent passengers from alighting between the tracks, but this was raised up by the plaintiff to enable him to collect the fares. The evidence also shows that this was usual and had been done by Snyder when tutoring the plaintiff.

A recapitulation of the prominent facts which were established by the verdict of'the jury shows that the plaintiff was riding on the running board of the car in the usual manner, engaged in the performance of his duties in accordance with the instructions given him. He was in the proper place to collect his fares and was not aware that while on the running board he was in any danger of being hit by a passing car. The tracks were dangerously close together at this point, not caused by any tapering to unite, for both north and south *388of the place of the accident the space widengd, but the narrow space was probably due to some oversight, for they were removed farther apart after the injuries to the plaintiff and apparently to-avoid the recurrence of a like catastrophe. It is not important whether when struck he was standing on the running board or passing around one of the standards as long as he was in the line of his duty, performing it in the ordinary manner and not cognizant of- any danger to be apprehended from the passing car. The defendant claims it had a rule requiring the guard rails on the inside of the ears to be kept down, and that this was posted in the ususal place for imparting notice to conductors. It is difficult to see any great potency to this question, for the way the proof was presented it was essential for the conductor to collect the fares on the inside running board, and certainly the guard rail if down would be an impediment to this work, and instead of mitigating, would have added to the peril of a ■person on the running, board. But waiving that, it was a question ■for the jury to determine whether this notice was posted, and their verdict on that proposition settled the fact in plaintiff’s favor.

With these facts fixed by the jury, we cannot' say the judgment should be disturbed. The proof shows that the defendant had left .its tracks at this place in a situation fraught with peril of which no notice, had been given to the plaintiff, and the danger could readily have been averted by the exercise of proper care.by the defendant. 'This condition had existed for some time, and Morgan, the manager of the defendant, knew that at this point the space between the tracks was narrower, and yet nothing was done to widen them out or to indicate to the conductors that they must keep off the running board when passing over this space.

It was the duty of the defendant to furnish a reasonably proper place for the plaintiff to carry on his work. The rule is stated in Kuhn v. D., L. & W. R. R. Co. (92 Hun, 74 [affd. on opinion below, 153 N. Y. 683] at p. 75): “ The defendant owed the plaintiff’s intestate the- duty to- exercise reasonable care and prudence -to furnish him a safe and proper place in which to prosecute his work, and if it became dangerous, and the danger could be foreseen and guarded against by the exercise of reasonable care, to exercise such cafe and adopt such precautions as would protect the intestate.” Mohr v. Lehigh Valley R. R. Co. (55 App. Div. 176); Brown v. *389N. Y. C. & H. R. R. R. Co. (42 id. 548; affd., 166 N. Y. 626); Mulvaney v. Brooklyn City R. Co. (1 Misc. Rep. 425 ; 49 N. Y. St. Repr. 637; affd., 142 N. Y. 651); Herdt v. Rochester City & Brighton R. R. Co. (48 N. Y. St. Repr. 46; affd., 142 N. Y. 626) decisively establish that - under the circumstances of this case the defendant’s negligence was for the jury.

Nor do we think the plaintiff can be charged with want of care as matter of law. He was insensible of the danger. It was not observable to him from the car. He had received no warning of it. He was in the discharge of his duties in the ordinary way and his mind was engrossed in their performance. In Wallace v. C. V. R. R. Co. (138 N. Y. 302) the plaintiff, a brakeman, was hit by a low bridge and a verdict was directed in favor of the defendant, which was affirmed by the General Term of the Supreme - Court, but reversed by the Court of Appeals. The plaintiff knew of the existence of the bridge, but at the time of the accident had his back toward it and was engaged in the discharge of his duties and was oblivious to the proximity of the bridge. The court say (at p. 305): “ We do not think that one thus situated can, as matter of law, be charged with negligence because he did not take notice of the fact that he was approaching the bridge, and thus know that he was in a place of danger. He was in a place where there was danger that the train might break in two, and he was intent upon the discharge of his duty. It cannot be said that a brakeman is, as matter of law, careless because he does not bear constantly in mind the precise location where the train is and where every bridge is.” Of like effect are Benthin v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 303); McGovern v. Standard Oil Co. (11 id. 588); Fitzgerald v. N. Y. C. & H. R. R. R. Co. (88 Hun, 359); Brown v. N. Y. C. & H. R. R. R. Co. (42 App. Div. 548, 553, supra). The case under consideration is much stronger for the plaintiff than any of the cases cited, for in each of those the person injured was conversant with the defect which was responsible for the injury, while the plaintiff here had no information of the nearness of the tracks at this particular point.

The dissenting opinion is upon.the assumption that the -plaintiff knew of the location of these tracks or by the exercise of care ought to have been cognizant of it. None of the conductors or *390motormen who testified appeared to be advised of it, and Snyder, when instructing the plaintiff, gave no information on the subject, but occupied the running board between the tracks at this point in collecting fares, indicating that he had not been apprised of the peril incident' to carrying on his work in that way. In view of these facts, we cannot say that the jury were in error in acquitting the plaintiff of blame in following the usual practice- and in not appreciating the danger.

The pith of the cases cited in the dissenting opinion like Gibson v. Erie R. Co. (63 N. Y. 449); De Forest v. Jewett (88. id. 264) and Kennedy v. M. R. Co. (145 id. 288), is that the person injured in each instance was entirely familiar with the defect which caused the injuries and it was held that the dangers appertained to the employment.

This was hot a risk which the plaintiff assumed. It was not an incident to the business, was not manifest, but was due to the oversight of the defendant which proper caution would have prevented. The employer mast to a reasonable degree perform the obligation resting upon him to safeguard the interests of his employees before the latter can be charged with assuming the risk with reference to the especial thing which should have been remedied. Assumption of risks must rest upon knowledge upon the part of the servant or the means of acquiring it by the exercise of ordinary diligence. Ás was said in Eastland v. Clarke (165 N. Y. 420, at p. 427): “It is now the settled law of this state that the risks which a servant assumes are either such as are incident to his employment, after the master has discharged his duty of reasonable care to prevent them, or such as are quite as open and obvious to the servant as the-master. * * * A servant does not assume risks which are not obvious, and are not known to him, but are or should be within the knowledge of the master.”

The judgment and order should be affirmed, with costs arid disbursements to the respondent.

Judgment and order affirmed, with costs and disbursements to the respondent.

Williams and Davy, JJ., concurred; Hiscook and McLennan, JJ., dissented.

Dissenting Opinion

Hiscock, J. (dissenting):

I am unable to agree with the conclusion reached by a majority of my associates, that the question of plaintiff’s conduct, of his assumption of risks incident to the construction of defendant’s road, and of his freedom from contributory negligence was for the jury. I think, upon the other hand, that upon the evidence presented he, as matter.of law,- assumed the risks which resulted in his. injury and that it was not permissible for the jury to find otherwise.

Defendant’s road was only about seven miles in length. The close proximity of its tracks, which is complained of here and which resulted in the accident, continued for a distance of nearly 200 feet. Plaintiff had been in the employ of defendant as a conductor operating a car on its road for thirty days, going over the road, including the particular portion under criticism, from twelve to fifteen times daily. Most of these trips must have been in daylight. His experience was during the season when there was no snow to cover up or obscure his view of the track. The condition was perfectly patent, and while he might not have known with perfect accuracy to an inch how close together cars would come in passing each other at the point in question, still his acquaintance with conditions was or should have been such as to inform Mm that they would come very close together and bring into danger one occupying the position which he occupied at the time of his injuries.

Under these circumstances, I think the case can be distinguished from or taken outside of the principles laid down in Gibson v. Erie P. Co. (63 N. Y. 449); De Forest v. Jewett (88 id. 264); Kennedy v. M. R. Co. (145 id. 288); Appel v. B., N. Y. & P. R. Co. (111 id. 550); Williams v. D., L. & W. R. R. Co. (116 id. 628).

Upon the other hand, I think it cannot be distinguished upon its facts from those especially relied upon by the respondent.

In Wallace v. C. V. R. R. Co. (138 N. Y. 302) the plaintiff, who was a brakeman, was injured while on top of a train by coming in contact with an overhead bridge. He had made many less trips under it than plaintiff had made over defendant’s road. At the time of his injury he was in a position to which he was called by the discharge of his duty, and inasmuch as this duty related to watching his train and guarding against accidents which were liable *392to happen just at that particular point, and inasmuch as he had no'control whatever over the movements of the train, his position at the time of the accident was largely forced upon him by rules and circumstances over which he had no power. In the case at bar, plaintiff might easily have suspended the collection of his fares for one or two minutes while passing over the portion of the road in question. Again, as was said by Judge Eabl, “It cannot be said that a brakeman is, as matter of law, Careless because he does not. bear constantly in mind the precise location where the train is and where every bridge is.” The wéiglit and common sense of the rule so laid down is apparent at once. It very well might be a hardship to hold, as matter of law, that a brakeman should keep in his mind constantly the precise location of every overhead bridge upon a long line of road. But that argument hardly applies to such situation as there was upon defendant’s road in the short space of seven iniles, and which, so far as the evidence shows, was an exceptional and not a common condition. But again, what necessarily must have-been of very great weight in the Wallace case, was the fact that the defendant was required to put up “ telltales ” which should warn brakemen of the approach to a bridge. The plaintiff in that case had a right to rely upon the observance of this rule, and such reliance, under very well-settled principles, exempted him from the care and caution which he otherwise might have been required to observe.

In Benthin v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 303) the plaintiff’s intestate, who was a fireman, was killed while looking out of the side of the engine by his head coming in contact with a telegraph pole. It was held that he was not to be charged, as matter of law, with knowledge of the precise, location of this pole and of the danger which followed from its situation near the track. But the court in laying down this rule, comments upon facts which distinguish that case very widely from the one at bar and which, as it seems to me, sustain defendant’s rather than plaintiff’s contention herein. The court says: “ This pole was but one of many, the location of which could not be borne in mind by any employee. This pole was not like a bridge or a station house—a structure — the location of which could not well be forgotten.” In addition to this, the accident happened in the night time, and the ques*393tion was fairly before the jury, as stated by the court, “ Whether the night of the accident was so foggy and dark that objects could not be distinctly seen for any considerable distance.” It seems to me that the situation and location of the tracks for a distance of nearly 200 feet upon a road only seven miles long, is much more to be governed by the principles applied to the case of “a station house — a structure—” than to a telegraph, pole which is one of many thousand upon a long line of railroad.

In Brown v. N. Y. C. & H. R. R. R. Co. (42 App. Div. 548), where plaintiff’s intestate, a fireman, while in the performance of his duty, was killed by being struck by a mail crane located near the road, the court said: “We think it can hardly be said as matter of law, that he ought to have seen and avoided this mail crane, for it was but one of many similar contrivances located along the line of the defendant’s road, and, as was saidi n the Benthin Case (supra), it ‘was not like a bridge or a station house — a structure—the location of which could not well be forgotten.’ ”

In this case, as in the Wallace case, the intestate at the time of his injury was called upon to perform a duty which was governed by circumstances not at all under his control, and which, therefore, did not give him the opportunity that plaintiff in the case at bar had of selecting a time which should be free from unusual dangers.

In McGovern v. Standard Oil Co. (11 App. Div. 588) the intestate, a brakeman, while on top of his car was killed by a low crossbeam maintained by an oil company. As indicated by the opinion in the case, it was a serious question whether, within the authority of the Williams Case (supra), the plaintiff should be non-suited, or, within the authority of the Wallace Case (supra), allowed to go to the jury. The court finally reached the conclusion that the latter case governed, referring especially to the rule therein laid down that “ A brakeman on top of a moving train, as matter of law, is not chargeable with negligence simply because he does not constantly bear in mind the precise location where his train and where every bridge over the track is.”

In Fitzgerald v. N. Y. C. & H. R. R. R. Co. (88 Hun, 359) plaintiff’s intestate, who was a freight brakeman, was killed by coming in contact with a low bridge. It is sufficient, in disposing of this case, to call attention to the fact that at the time of the acci*394dent it was not light, and that intestate had only been, over the road once before.

The disposition, by the Court of Appeals of the recent case of Young v. S., B. & N. Y. R. R. Co. (166 N. Y. 227) merits con sideration upon this question.

Plaintiffs’ intestate in that case was an engineer upon defendant’s road. He was killed by having his train; through a misplacement of a switch, r.un on a siding. While the red light upon the switch indicated-that it was open and that, therefore, there was danger, in consequence of the construction of ' certain obstructions by the side of the track and the location of the switch signals, the intestate could not see the danger signal in time to avoid the collision. Plaintiffs’ intestate had been at work upon the road a long time, and upon the trial the plaintiffs were nonsuited upon the ground that the deceased assumed the risks of the dangers resulting in his death, since he had the same knowledge of the location of the switch with reference to the obstructions that the defendant had, and if the' place was dangerous he knew or should have known what "the situation was, and, therefore, assumed the risks. The Appellate Division (45 App. Div. 296) reversed the judgment of nonsuit, saying: “ We believe it to be settled * * * by repeated adjudications that a servant is not bound at all times and under all circumstances to be mindful of - the dangers which surround him while engaged in the performance of his duty, even though he may be well aware of their existence,” and then cited the cases which are now relied upon to. sustain plaintiff’s contention in this case and to which reference has already been made. The Court of Appeals, while affirming the judgment of the Appellate Division, very distinctly declined to overrule the decision of the trial judge that the deceased assumed the risks of his occupation incident to the situation of the switch light and structures referred to, or to affirm the judgment of the Appellate Division upon this question, placing its decision upon an entirely separate and distinct ground.

It seems to me that unless we are to abrogate the rule once thoroughly established, that an employer was not bound to Change the location and situation of his structures like the one in question, and that an employee assumed the risks incident to a perfectly open and patent condition, we must be led to the conclusion in this case *395that plaintiff is to be charged, as matter of law, with the risks which resulted in his accident.

In- addition to this main issue, in my judgment .there are exceptions to the rulings of the trial judge which present close and somewhat troublesome questions, but in view of the conclusion reached upon the proposition above discussed it does not seem necessary to go over them at length.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.

McLennan, J., concurred.

Judgment and order affirmed, with costs.