I do not concur in the opinion of the majority of the court reversing the judgment and order appealed from. The plaintiff’s intestate was not a servant- of the defendant Corporation, but of a contractor with that corporation to do certain work in repairing the system of signals on the defendant’s roadway near the bridge over the Harlem Eiver. The decedent had been engaged in that work under the direction of a foreman of the contractor and for a sufficient time to enable the defendant’s officers and employees to have knowledge of that fact. He was working at a dangerous place on the roadway. Two hundred and seventy trains passed daily the point at which he was working, which was near the westerly or fourth track. It is admitted that he was killed either by a train proceeding northward on that track or by a locomotive proceeding in the same direction on the third track; and as the evidence shows that he had passed beyond the fourth track in safety, he must have been killed by the locomotive moving on the third track, and which was concealed from observation when he started to cross from the west to the east. The locomotive was running at the rate of thirty-five miles an hour. A bell was not rung nor was a whistle *182soundéd. There was a curve in the line of railway just to the south of the point at,which the intestate started to cross the • tracks and it is apparent that the position of the train on the fourth track prevented his seeing the locomotive on the third track. In such circumstances, it was the duty of the defendant to give to those who were working on or near the tracks, some notice of danger from approaching trains, in order that they might escape that .danger. (Loomis v. Lake Shore & M. S. R. Co., 182 N. Y. 380; Sullivan v. Tioga R. R. Co., 44 Hun, 304; affd., 112 N. Y. 643; Conlan v. N. Y. C. & H. R. R. R. Co., 74 Hun, 115; affd., 148 N. Y. 748; Dempsey v. N. Y. C. & H. R. R. R. Co., 81 Hun, 156 ; Wells v. Brooklyn Heights R. R. Co., 67 App. Div. 212.)
I think there was evidence to go to the jury sufficient to show that the defendant failed in its'duty to protect plaintiff’s intestate while he was engaged in working at appliances upon its roadway used in the operation of the road. The subject of contributory negligence was also one for the jury. We may assume that the plaintiff’s intestate had been working at or about the point at which he was killed for a sufficient length of time to enable him to know that certain dangers surrounded him, and it was undoubtedly his duty to be vigilant and careful and to do everything that a prudent and reasonable person would do to protect himself from Injury. . It is true that he crossed the fourth track only ten or twelve feet in front of the train proceeding on that track. There is no reason to doubt that it was necessary for him to cross the fourth and the third tradks in order to get to the place to which he had been sept by Heafy to test the signal switches. The evidence is that before he started .to cross the tracks he looked south and doubtless he saw the approaching train, but there is nothing in the evidence to indicate that lie could have seen the locomotive on the third track; nor is there . ' , I anything to show that he could or should have anticipated the presence of that locomotive running -side by side with the train in the same direction. The case differs radically from Keeler v. N. Y. C. & H. R. R. R. Co. (114 App. Div. 807), which was an actibn similar to this. There, an employee of the contractor .working on the elevated signal system was killed on the same viaduct by a train of the New York, Hew Haven and Hartford Bailroad Company, but in such circumstances as induced the court to hold that he was *183guilty of contributory negligence as matter of law, and the facts-proven fully justified that conclusion.
I think it was for the jury, in this case, to say whether the plaintiff's intestate did anything or omitted to do anything which could • be regarded as negligence on his part. The case went to them on a very satisfactory and sufficient charge, and the judgment and order should be affirmed.
Houghton, J., concurred. , •
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.