' The tracks of the defendant from the Harlem river to the One Hundred and Twenty-fifth street depot are upon an elevated structure over Fourth avenue. The tracks cross the Harlem river on a bridge and then proceed on this structure to the depot. This structure is used exclusively for railroad purposes and upon it there are four tracks. The two westerly tracks are used for trains going from the depot and the two.easterly tracks going to the depot. The yards of the rail*178road company.are located north of the river. _ The tracks are used ■ both for trains carrying passengers from the depot and for locomotives going to and from the railroad yards to the- depot. The two westerly’ tracks are known respectively as tracks 3 and '4, Ho.' ,4 being the westerly track, and Ho. 3 being the track to the east. About two months prior to February 6, 1903, a corporation known as The Pneumatic Signal Company was doing some '.work under a contract with defendant in relation - to automatic signals upon this elevated railroad structure. On February 6,190,3, two employees of the signal company seemed to have been at work on this structure adjusting the signals. ■ One Heafy was in charge ’ of the work, assisted by plaintiff’s intestate. Trains were constantly passing and repassing on the- tracks. Heafy had been at work for two months upon this structure and upon the bridge crossing the river,'and plaintiff’s intestate had been assisting. Heafy for several days. On this morning Heafy wanted to ascertain the drop of a signal upon a pole, and he told the «plaintiff’s intestate to go to the switch and center the lever. This switch was located just south of. the drawbridge, and in order to get to it the plaintiff’s intestate had to cross the tracks. On each side of this structure and alongside the tracks there was a passageway so that those engaged in working upon the tracks could allow trains to pass. ' Heafy, upon • giving this order, climbed up on the top of á pole. The plaintiff’s intestate started for the switch house to obey the instructions that he had received. As he started a train drawn by a locomotive was proceeding north on the westerly track'(Ho. 4), and there was also a detached locomotive proceeding north upon track Ho. 3. A witness who was sitting'in the window-of a house on Fourth avenue overlooking the structure testified that she saw the plaintiff’s intestate look up and down the road and start to. cross the tracks; that when he started the train on the westerly track was approaching and he crossed in front of it. Apparently he crossed that track in safety, but was .struck by the engine upon track Ho, 3"and received injuries which .resulted in his death.
■ This accident happened just after nine o’clock in the morning, a _dear*day with nothing' to obstruct the view of the tracks except that it is possible that "the approaching train concealed the locomo-' five on track Ho. 3. These men were not. working upon the tracks - *179nor were they employees of the defendant, but so far as appears their work did not require them to go upon the track, and while attending to their work they were in a position of safety. I cannot find that there is any evidence that the men were accustomed to cross the tracks, or that any of the employees of the defendant had notice of the fact that these men, working at these automatic signals, were at any time required to be upon the track. The only claim of "negligence on the part of the defendant is based upon a failure to give notice of the approach of the train of locomotive; but the train on track Eo. 4 was in plain sight and the evidence is that the plaintiff’s intestate looked towards it and he must, therefore, have seen it. So, that the failure of the defendant to give warning of the approach of the train was not, in any sense, the proximate cause of the injury. The place at which these men were at work was not a depot or crossing, or a pla.ce at which there were men constantly at work to the knowledge .of the defendant or its employees, but an elevated structure upon which trains were passing, used exclusively for the trains, and there is nothing to show that the defendant or any of its employees had any notice that these particular men were at work on this morning or that their woflc required them to be upon the tracks or in such a position that they could be injured by the trains. The men understood the situation and knew that trains were constantly passing and that at any time a train was liable to pass upon either dr all of the tracks.
Upon this evidence I do not think the jury was justified in finding the defendant guilty of negligence or the plaintiff’s intestate free from contributory negligence. 1 do not think that the cases relied on by the plaintiff, the latest of which is Loomis v. Lake Shore & M. S. R. Co. (182 N. Y. 380) applies to this particular situation. The question is whether there was any duty upon the employees of the defendant to give notice of the approach of each train that passed over those tracks at this locality. In the Loomis Case (supra), the accident happened upon the tracks in the yard of the defendant in the city of Buffalo. The tracks of the defendant ran east and west through the yard, where there were a number of parallel tracks used, for storing cars. About seven o’clock in the morning, a clear July day, a freight train on which the plaintiff’s intestate was a workman was standing on one of the main tracks of the *180road. The deceased was walking towards the end of this train between the east and - west-bound tracks and before he reached, the end of the .train he was struck by the rear of the tender of a passenger engine. It was proved that this locomotive was being run in violation of the rules of the defendant road,' and was hacking over a public highway through a yard without any employee in a situation where he could see those that were on the- track over which the locomotive was proceeding. In -this yard the employees of other roads were working, and the locomotive, without warning or notice, backed through it, and. in violation of the rules of tlie company. It was a place of danger, and the situation there required some precaution by the employees of the defendant in backing the' engine to avoid injuring those upon the tracks engaged in the performance of their duties in the yard. The fact that the defendant had made rules regulating the use of its locomotives and trains-through this yard, which - required .that no train must he backed unless there was a man on the rear car to see if the crossing was clear, which rule was violated, was some evidence of negligence on the part of those in charge -'of the locomotive which caused the injury. The rule that required the railroad company in operating its trains or locomotives in a railroad yard or over a public crossing, or other like places, to -give notice of the approach of trains or locomotives, or to take some measures for the protection of those exposed to the danger of being run over, does not apply to the main track of a railroad of this character over which trains are constantly passing, There is no evidence tó show that the defendant or its employees had notice that the- plaintiff’s intestate and Heafy were working alongside .of the track on this particular morning. Certainly, the engineer of this locomotive proceeding on ■ the middle track could not anticipate that any one would pass immediately in front of the locomotive of the train on track 4, or that’the situation required that he should- give a signal. But I cannot see that the lack of warning was at all the proximate cause of the accident. The deceased knew of tire situation ; knew that trains were constantly passing and repassing at this point. If he looked toward the approaching train he must have seen it. Whether he also saw the engine coming on the third track -we do not know, but he saw all that a bell or other warning would have told. him.
*181E"or do I think that there was evidence to show that the deceased was free from contributory negligence. He had full knowledge of the situation. It was a bright day,, with nothing to obstruct his view. He was required to cross the tracks upon which trains were constantly passing. He must have' seen a train approaching and crossed directly in front of it. There ivas nothing that required him to cross in front of the approaching train instead of waiting until it had passed. It was essentially a dangerous act, and the accident was directly caused by attempting to cross as he did without waiting for the train to pass. '.
I think, therefore, that the verdict that the defendant was guilty of negligence or that the plaintiff’s intestate was free from contributory negligence was not sustained by the evidence, and it follows that the judgment and-order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Laughlin and Clarke, JJ., concurred; Patterson and Houghton, JJ., dissented.