Di Napoli v. New York, New Haven & Hartford Railroad

Burr, J. :

This action was originally brought against the New York, New Haven and Hartford Bailroad Company, Edward F. Lathrop and John J. Shea, by the administratrix of Giovanni Di Napoli, deceased, to recover for the pecuniary injuries resulting to his next of kin from his death. Upon the trial the complaint was dismissed as against the railroad company. The motion made by defendants Lathrop and Shea at the close of plaintiff’s case to dismiss the complaint as to them was denied, and from a judgment entered upon the verdict of a jury in plaintiff’s favor and from an order denying a motion for a new trial the said defendants bring this appeal.

The negligence charged against the said defendants was a failure to provide the plaintiff’s intestate, who was their servant, with a safe place to work. The specification of negligence was the failure to provide some one to warn plaintiff’s intestate when he crossed the tracks of the railroad company of approaching trains. Neither he nor any laborer, foreman, materialman nor carpenter employed by said defendants had any work to do upon these tracks. They had nothing whatever to do with them. The defendants were engaged in putting concrete foundations for piers upon each side of the track. Their work consisted in' digging a hole some distance removed from the line of the track and pouring cement or concrete into" it. A different gang and different foreman worked on opposite sides of the tracks. Sometimes one gang would work more rapidly than the other, and then it would be temporarily shifted across the track to keep the work upon each side thereof about equally advanced. This would happen only once in two or three days. Occasionally, if the gang working on one side of the track was out of material, a man or men would be sent across the track to get it, borrowing from the other gang. As one of plaintiff’s witnesses expressed it, “ That would happen any day almost.” The work might go on even for a day without the need of any workman or laborer crossing the track at all. When they did have occasion to cross the track there was nothing to engage- their attention or to divert it so that they could not be expected to look out for and avoid approaching trains. On the day in question the gang in which plaintiff’s intestate was employed resumed work at half-past twelve. About one o’clock the foreman told him to cross the track and get a plumb-line for him. He crossed the track, got the plumb-line, which was the ordinary plumb at the end of a string six or seven feet long, which he could have put into his pocket. On his return he was struck by a passenger train and killed.

We think it is very doubtful if there was sufficient evidence to go to the jury on the question of freedom from contributory negligence on the 'part of the deceased. But if there was, certainly there was no negligence on the part of the defendants. The only reason for the rule that when men are éngaged in working upon a railroad track the master in the exercise of. reasonable care should provide some one to keep watch of approaching trains and give warning to the men there employed, is that the very place where they are at work is a place of danger,-and ordinary attention to the work in hand might make it difficult for. those so employed to exercise watchful care' for their own safety. To hold that because a workman, whose place of work was perfectly safe, was occasionally sent on an errand across a railroad track, under circumstances which did not require him to pay attention to anything except his-, own safety while crossing such track, it was necessary to have some One to watch and warn him of approaching trains would be an unreasonable burden upon the master. One might just as well contend that if a gang of men were engaged in work upon one side of a street or avenue, and it became necessary to send one of them on an errand across such street, the master should detail some one to keep watch and take care of him while lié passed* from one side of the thoroughfare to the other. ■

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Jenks and Thomas, ' JJ., concurred; Woodward, J., read for affirmance, with whom Rich., J. concurred.