The defendants Lathrop and Shea appeal from a judgment entered up'on a verdict awarding the plaintiff $4,500, in an action to recover damages sustained, as it was alleged, through the negligence of the defendants, resulting in the death of the plaintiff’s intestate; and from an order denying a nation for a new trial. At the close of the plaintiff’s case the complaint was dismissed as against the defendant railroad company.
The action was brought under section 4702 of the General Statutes of Connecticut (Revision of 1902), and it is conceded that that law governs, the accident having happened near Stamford in that State.
The plaintiff’s intestate was employed as a carpenter by the defendants Lathrop and Shea, who were copartners^ engaged in put ting in concrete abutments for the defendant railroad along its lines. *337These abutments were being placed along both sides of the tracks, and two gangs of workmen were engaged; one- gang on the east side of the tracks, the other on the west side. As the work progressed these gangs were shifted from time to time from one side of the tracks to the other to' do their respective kinds of work; and the men were frequently required to cross from one side to the other of the tracks to carry material and working tools.
On the day the plaintiff’s intestate lost his life he was working on the westerly side of the tracks, and from there his foreman sent him across to the easterly side to get a plumb line. Eetnrning with this, as he approached the most easterly track he stopped to wait for the passing of a freight train going north on the next track to the east. He then looked up and down the track, stepped over the easternmost rail, and. was struck by a Boston-bound' express train and killed. The express had just rounded a sharp curve to the south, and the view down the track from where the deceased was struck was somewhat obstructed by buildings.'
The Connecticut statute, under which the action was brought, reads: “ Master’s duty to servant.— It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his co-laborers; to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master.”
The principal charge of negligence on the part of the defendants Lathrop and Shea is that they did not maintain any system to warn their employees of the approach of trains. The place where the plaintiff’s intestate met his death was an extremely dangerous one, there being four parallel tracks, of the defendant company, with trains constantly passing at high rates of speed, and a trolley line between the places along the sides where the gangs were working.
There is some unprofitable discussion in the briefs as to the application of the Connecticut statute—-whether it is merely declaratory of the common law, or corresponds with the New York Employers’ *338Liability Act (Laws of 1902, chap. 600). But the question here is not one of the. liability of the master for the default of his servants. It is rather a direct failure of the master to .perform the duty owed to the servants in exercising reasonable care to afford them a reasonably safe place to work. No warnings of any sort were provided. No person was designated for that purpose by-the defendants; so the question of the negligence of fellow servants and the liability for the negligent acts of vice-principals can be eliminated.'
The evidence that the deceased looked up and down the track before stepping over the first rail, taken in connection with his obstructed view, the confusion of the passing freight train, the necessity of crossing the tracks daily in the performance of the work, presented a question for the jury as to his contributory negligence. This question, as well as those of the defendants’ negligence and the assumption of risks by the deceased, may well be disposed of by applying the principles of Felice v. N. Y. C. & H. R. R. R. Co. (14 App. Div. 345) and Johnson v. Terry & Tench Co., Inc. (113 id. 762).
_ In the Felice case a judgment in favor of the plaintiffs in an action to recover damages for negligence was affirmed. The court said: “We think the question of contributory negligence was properly left to the jury. It is quite true that the plaintiffs’ intestate knew that the defendant was in the habit of permitting its trains and engines to run down through this tunnel at comparatively high speed, and that he was bound to look out for them and avoid them. But he was supposed to know that there was imposed upon the master the duty to use all reasonable care to diminish the dangers which might arise from the running of trains through this tunnel, and he was bound only to exercise such care as would be sufficient to protect him if the defendant on its part had given him the warning to which he was entitled. (McGovern v. Central Vermont R. R. Co., 123 N. Y. 280 ; Ford v. Lake Shore & Mich. Southern R. Co., 124 id. 493.) ”
In the Johnson case a judgment dismissing the complaint in a similar action was reversed. It was said by Mr. Justice Miller: “ While the servant assumes the dangers incident to the work which he is doing, he only assumes such dangers as arise after the master *339¡has performed its duty, and it is well settled that the duty of the master to furnish a safe place includes the duty to exercise reasonable care and prudence to guard against such dangers as may reasonably be foreseen and guarded against (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368 ; McGovern v. C. V. R. R. Co., 123 id. 280), and if the place may become dangerous by reason of perils not arising from the particular work, it is the master’s duty to give such warning as will enable the servant in the exercise of reasonable care to avoid or guard against such additional dangers. (Felice v. N. Y. C. & H. R. R. R. Co., 14 App. Div. 345.) It is difficult to distinguish the case last cited from the case at bar, because it cannot matter that the added danger arose not from other work pertaining to the master’s business, but from work of third persons, provided the master knew that such danger was .bound to occur. In the case at bar we have the concession that the master took no means whatever to give its servant warning of a danger which it ■must have known was constantly occurring. The fact that it had a foreman on the spot cannot relieve'it from liability, because the master could not delegate the duty of exercising reasonable care to furnish á safe place. (McGovern v. C. V. R. R. Co., supra ; Pantzar v. Tilly Foster Iron Mining Co., supra. See, also, Aleckson v. Erie R. R. Co., 101 App. Div. 395.) We think the evidence, considered in the light- of the respondent’s concession, presented a question for the jury whether the defendant failed to exercise reasonable care to. guard the plaintiff from the dangers arising from the operation of the trains upon the tracks where he was at work.”
I vote for affirmance.
Eioh, J., concurred.
Judgment and order reversed and new trial granted, costs to abide .the event.