The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.
The action is for negligence. The plaintiff at the time of the. accident was an employee upon the defendant’s road as track inspector or sectionman. While looking over the track he discovered the rails were spread at one point, and reported it to his boss, who told him to gó and fix it. He went with an assist*137ant about one o’clock p. m. , and began the work. The spikes had to be pulled out, the rails pushed over and the spikes driven in again. Plaintiff stood one foot each side of the rail driving spikes, when a local freight train approached him from behind. He started to get out of the way but had not enough time, and was struck in the right side and thrown five orsix feet out upon the grass, and more or less injured. He looked occasionally for trains as he worked, did not hear any bell or whistle from this train, and it was ten or twelve feet from him when he first saw it. He had been working on the railroad for many years off and on for this and other companies. The track where the accident occurred was straight and plaintiff could see a long ways in the direction the train came from. He knew trains were hable to come along any' time, and he looked for them every few minutes. His assistant was near him, but said nothing as the train approached. Three men were on the track and saw the train, but heard no bell or whistle.
First. The action being tinder the Employers’ Liability Law (Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14) the question of contributory negligence was one of fact for the jury and not of law for the court. (Knezevich v. Bush Terminal Co., 127 App. Div. 54; Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416.)
In addition to this I think it was a fair question of fact whether the plaintiff was guilty of contributory negligence. No warning was given of the approach of the train. The plaintiff was busy at his work, looking out for a train every few minutes, and had a right to expect a signal would be given before the train rah him down. (See Thomp. Neg. §§ 1839-1840; O’Connor v. Union R. Co., 67 App. Div. 99; Reilly v. Interurban Street R. Co., 108 id. 254, and cases therein ref erred to.) The nonsuit could not properly be granted upon this ground.
Second. The negligence consisted of the failure of the engineer to give the signal by bell or whistle.
This was the negligence of the defendant itself and not of a coemployee. (Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 42a, added by Laws of 1906, chap. 657.) I think there can be no doubt' but that the failure to give *138warning of the approach of the train constituted negligence. (See cases above referred to.) ' ' •
The nonsuit could not be properly granted upon this ground.
All concurred, except McLennan, P., J., who dissented upon the ground that the defendant was not shown guilty of actionable negligence, nor the plaintiff free from contributory negligence.Judgment and order reversed and new trial ordered, with costs to appellant to abide event.