Plaintiff, in defendant’s service as a laborer for three years - and nine months, was on January 11,1908, overcome by smoke and gas in a tunnel, which was about one mile in length with a single track. The accident happened in the State of Pennsylvania, where defendant was incorporated. Was the plaintiff a resident of New York? Is the.defendant proven negligent ? Plaintiff, a subject of Italy, where his family has remained, after hoarding two years in Brooklyn, went to Stroudsburg, Penn.,- and remained during his service with the defendant, and in addition for ten or eleven months after his discharge from the hospital, where he was for fifty days. His absence was for nearly five years, with an .occasional visit to *789Brooklyn. He testified that he considered Brooklyn his home; that he went with intention to return to it, and adds: “I went away with the intention of working for two or three years and accumulating some money to send for my family and I could not do that. The Court: Then where did you intend to five ? The witness: At Brooklyn. ” The facts show that his actual residence was in Italy or at Stroudsburg. He went from Brooklyn, where he had no ties and no home, to a place where he abided for all the purposes of his fife and where he was when the suit was begun. His intention when he went is not shown even to have continued, and the plan of sending for his family and living in Brooklyn never matured after eleven years in this country. His place of residence should not be ascertained from a state of mind existing at a period so remote, as declared on the witness stand, when every outward act for so' many years speaks against it. The smoke and gas in the tunnel overcame plaintiff and one or more other workmen. They began cleaning the tunnel on January eighth, and were on the third day of the work when, about four p. M., the oppression was sufficient for the injury. The plaintiff noticed gas from the day of going in. The peril seems to have arisen during the afternoon of the third day. I do not find the facts on which the jury justifiably found the master’s neglect to furnish a safe place to work. The jury by permission seem to have summoned their own knowledge, if any they had, as to the proper time and manner of doing the work and the prudent passing of trains. In view of the recognized meagemess of the evidence, or, I would say, the total absence of relevant and instructive evidence, the court indicated recourse to what was deemed common knowledge. “ That is the real question. (Could' the railroad company, by the exercise of reasonable care, have sent him in there to do this work -under conditions of greater safety.) The railroad company had twenty-four hours in which they could have done that work in that tunnel. There were times when the trains moved with less headway, and times when they moved with greater headway. There is a way of handling locomotives, as we all know, so they give out a great deal of smoke, or they do not. All those things are facts which you may consider.” But'handling the locomo*790tive is work of operation that falls to the engineer and fireman, and such persons were the fellow-servants of the plaintiff. Hence, their fault or merit is not relevant in an inquiry related to a duty of the master.' Could the work by the master’s direction have been done within periods when the trains passed with less frequency ? The work extended through several days. Could it with less danger have been done at night, or in the morning, or at midday, or in the afternoon ? I find no evidence that furnishes data for selection of some fraction of the day, The last train before the accident was “about three o’clock or ten minutes after three or quarter after three. Then there was no other trains up to the time I fell down.” So the plaintiff testified. He was hurt at four or quarter to four. Later he says: “Trains passed every five minutes, every ten minutes, every quarter of an hour, every twenty minutes.” Another witness stated that eight or nine trains passed during the afternoon. There is no evidence that trains within the twenty-four hours passed more advantageously for the work, and what private knowledge the jury had of the matter cannot be conjectured. It is apparent that for the three days up to the time of the accident the men worked safely. Hor does it appear that such an oppressive condition had ever before arisen. The just inference, then, is that there was an unusual accumulation of smoke or ,gas during the afternoon from one or more locomotives. But that arose from some action of fellow-servants on the locomotives, and even if they were at fault for it the defendant is not liable. •
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Carr and Woodward, JJ., concurred; Bich, J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.