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.