I concur with Mr. Justice Houghton in his opinion. It is quite evident that the failure of the foreman to display a flag to warn approaching trains was not the proximate cause of the injury. The motorman of the car was called by the plaintiff and testified that as he approached Seventy-fourth street he observed two men walking on the footpath, east of the track, one ahead of the other, the man in the rear carrying something on his shoulder. The object of' displaying the flag was to warn approaching trains that workmen were working on the track, so that the motorman could proceed with caution. The motorman of this train saw the men and, therefore, had all the notice that would have been conveyed to him if a flag had been displayed. Accepting the motorman’s testimony, it is quite clear that he was not guilty of negligence. So far as I can see, there is nothing to impeach his evidence 'that it was the action of the plaintiff’s intestate in moving towards the car when the front of the train had caught up with him that caused the injury. If it could be said that the foreman, as the person charged with the acts of superintendence, was guilty of negligence in not displaying this flag, that negligence had no relation to the accident, as the motorman saw all that the flag would have told him; certainly the motorman was not charged with the duty of superintendence in relation to the deceased.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.