The plaintiff’s work was dangerous if care was not observed by the railroad company at that point in the movement of its cars. That this was recognized by the company sufficiently appears from the fact that it gave instructions to its motormen to approach the place at half speed and give warning by the ringing of the gong. In other words, although the place itself was not dangerous, it could be rendered so by the manner in which the cars were operated. Hence we may assume, as did the company, from the conditions *188existing wliere the work was being conducted, that the duty of being actively vigilant there in the movement of the cars rested upon it.
Whether that duty was performed is the question presented for our consideration upon this appeal, because we can eliminate from the discussion all reference to contributory negligence since we are agreed that the action of the workman in the trench when moved by the natural impulse of protecting himself from ivhat to him seemed to be an object above him which placed him in danger in involuntarily placing his hand on the track, where it was crushed by the wheels of the car, was not on his part negligent as matter of law, but was a circumstance to be submitted to the jury. Furthermore, on that branch of the case, we have the plaintiff’s testimony that he had no reason to apprehend danger except from approaching cars, and that in each instance on rising and just before again stooping down in the trench, he looked along the track to observe whether a car was approaching, and that immediately prior to the accident, although he looked, he did not see any. With respect, therefore, to the exercise of care on the part of the plaintiff, there was presented sufficient evidence to make the question of contributory negligence one for the jury.
Concerning the defendant’s negligence, the obligation resting upon a railroad company under circumstances somewhat analogous to those in this case was discussed in Bengivenga v. Brooklyn Heights Railroad Co. (48 App. Div. 515) where a workman was injured while employed in asphalting a street through which the defendant’s cars were passing at the time, and wherein it was held, as stated in the head note, that “ the condition was one requiring the person operating the car to exercise extreme care for the protection of the workmen and to -give abundant warning of its approach and to have it under such control that it could be stopped practically upon the instant.” And it was also held that, under the peculiar circumstances appearing, “it was a question for the jury whether the plaintiff should have looked immediately after the passage of the iirst car, or whether he was justified in relying upon the assumption that the defendant would discharge its duty to give warning of the approach of the second car and stop it before the injury was done.”
*189• In the ease before us the proximate cause of the injury was the want of knowledge on the part of the plaintiff that a car had approached and was just over him, resulting in his involuntarily grasping the rail of the track with his hand, under the impulse of warding off what to him seemed a threatening danger. Of course, if the failure on his part to be aware of the approach of the car was not due to any want of care on the part of the motorman, then the defendant would not be responsible, however grave and serious the accident. In view, therefore, of the duty which the law exacts and which the company recognized as resting upon it, of running the cars at a reduced speed and of sounding the gong so as to give warning of their approach to those working in the trench, it remains to be determined whether there was sufficient evidence of an omission on the part of the company to observe such duty, to raise a question of fact for the jury.
To support the burden resting upon the plaintiff of showing the alleged negligence of the defendant, testimony was given tending to show that the car which injured the plaintiff was going “ rapidly,” and, within a very short interval after the accident, had reached the block below, and that the plaintiff’s fellow-workmen “ did not hear ” any gong sounded. This latter testimony being negative in its nature, might not, as to the failure to sound the gong, be sufficient, but in addition we have the plaintiff’s own positive statement that “ no bell was rung.” On the question, therefore, of whether the motorman was negligent in failing to run the car at reduced speed and in not sounding the gong, a prima facie case was made out; and that this was the view of the learned trial judge is evident from the fact that when a motion was made by the defendant at the close of the plaintiff’s case to dismiss the complaint, the trial judge, after the argument, refused to grant it, reserving his decision and. requiring the defendant to put in its evidence. Witnesses were produced, therefore, in opposition to the case thus made by the plaintiff, and their testimony was strong and positive that, at the time of the accident, the car was running at half speed and the gong was being continually sounded; and it was because of the weight which the learned trial judge attached to this testimony that he dismissed the complaint, regarding such evidence as I should also be inclined to regard it, as preponderating in favor of the defendant’s version. *190There was presented, nevertheless, a question of fact to be disposed of upon conflicting testimony, which question, under the late rule of the Court of Appeals, it was peculiarly within the province of the jury and not of the trial judge to determine.
This I understand to be the law as laid down in the recent ease of McDonald v. Metropolitan Street Railway Co. (167 N. Y. 66), and correctly summarized in the head note, that “ the court cannot in any case where the right of trial by jury exists, and the evidence presents an actual issue of fact, properly direct a verdict; if, in such a case, it is dissatisfied with the verdict because against the weight or preponderance of evidence, it may be set aside, but a new trial must be granted before another jury, and the direction of a verdict, under such circumstances, is reversible error.”
Upon the authority of this case, therefore, I dissent from the conclusion reached by the majority of the court, and think that the judgment of dismissal should be reversed and a new trial ordered, with costs to the ajjpellant to abide the event.
Hatch, J., concurred.
Judgment affirmed, with costs.