(dissenting): We are in agreement, I think, that the verdict of the jury established the facts that the defendant had notice of the condition of the work at the crossing, and that the collision of the train with the truck constituted actionable negligence.
A majority of the court do not believe that the evidence is sufficient to show freedom from contributory negligence on the part of the plaintiff’s employee in charge of the truck. With this view I do not agree.
A railroad company has no right to construct its tracks across a highway except by legislative grant. (Railroad Law, § 8, subd. 4; Delaware, L. & W. R. R. Co. v. City of Buffalo, 158 N. Y. 266; 33 Cyc. 191.) The right it thus obtains is subject to the dominant right of the sovereign State. It may by the necessities of the situation have a paramount right of way at crossings over travelers along the highway. But it has no right superior to the public interest. (Kurt v. Lake Shore & Michigan Southern R. Co., 127 App. Div. 838, 842; affd., 194 N. Y. 598; Penal Law, § 1985.) On the other hand, its right is a qualified one subject to regulation, and its right even to move its trains over a street or crossing must yield to that of public necessity. (Railroad Co. v. Richmond, 96 U. S. 521.) This is commonly illustrated in cases of fire where it becomes necessary to lay fire hose from hydrants across the track. If with knowledge *50of the facts a train proceeds, the company is liable in damages not only for the loss of apparatus, but to an individual owner whose property burns by reason of its act. (Phenix Ins. Co. v. New York Central & H. R. R. R. Co., 122 App. Div. 113; affd., 196 N. Y. 554; Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277.) The same rule applies where it unnecessarily blocks a crossing thus preventing apparatus reaching the fire. (Houren v. Chicago, Milwaukee & St. Paul R. Co., ,236 Ill. 620; 20 L. R. A. [N. S.] 1110; Cleveland, C., C. & St. L. R. Co. v. Tauer, 176 Ind. 621; 96 N. E. Rep. 758; 39 L. R. A. [N. S.] 20.)
The State was prosecuting a public work in building an improved highway. It had let the work to a contractor. It was necessary to lay concrete within two or three feet of the track. It was as important to the people of the State that this public work be done expeditiously and economically as it was to the defendant that its trains move rapidly. In prosecuting such public work, those engaged therein were in a different position from that of ordinary travelers on the highway. To those engaged in a public duty even on private property the owner may be liable for affirmative acts of negligence, and the question of their contributory negligence is for the jury. (Racine v. Morris, 136 App. Div. 467; affd., 201 N. Y. 240.) They are rightfully on the premises and the owner owes them the duty of exercising reasonable, care for their safety under the circumstances. (Meiers v. Koch Brewery, 229 N. Y. 10, affg. 180 App. Div. 450, decided in this court.) There is authority that one who is on the premises in the performance of a duty is there by implied invitation. (Toomey v. Sanborn, 146 Mass. 28; Anderson & Nelson Distilleries Co. v. Hair, 103 Ky. 196; Thomp. Neg. [2d ed.] § 981; 29 Cyc. 457.) In this case there was no ownership by the defendant of the land at the crossing. (Bangor, Oldtown & Milford R. Co. v. Smith, 47 Maine, 34; 33 Cyc. 260.) Its easement to use it was no greater than that of the public (Flanagan v. N. Y. C. & H. R. R. R. Co., 70 App. Div. 505; affd., 173 N. Y. 631; 33 Cyc. 260) and subordinate to the sovereign right of the State in the prosecution of a public work. The contractor had been authorized by the State to do the work, and with his employees had thereby acquired the rights reasonably necessary in its performance.
The defendant had notice of the conditions at the crossing and owed a duty of active vigilance and care toward those at work there. On the other hand, those engaged in the work could not in the diligent performance of their duties give the same degree of care to their safety as a wayfarer. The law does not exact, it. (Ominger v. New York Central & H. R. R. R. Co., 4 Hun, 159; Lewis v. Binghamton R. R. Co., 35 App. Div. 12; Noonan v. N. Y. *51C. & H. R. R. R. Co., 16 N. Y. Supp. 678; affd., 131 N. Y. 594; Bengivenga v. Brooklyn Heights R. R. Co., 48 App. Div. 515; Wells v. Brooklyn Heights R. R. Co., 67 id. 212, 215.) They may rely on the fact that others will perform their duty to avoid running them down or injuring their property. (Newson v. N. Y. C. R. R. Co., 29 N. Y. 383, 389.) The strict rule of vigilance and care ordinarily applicable to others under different circumstances to avoid the charge of contributory negligence may not be applied to those engaged in a public duty. (McDade v. International R. Co., 235 N. Y. 11.)
The concrete mixer was near the track. The road leading up to it was partly torn up. The practicable way to deliver the load of gravel was to back the truck across the track and dump it. The operation took about three minutes. The truck ordinarily after dumping started and moved without delay. Ten or eleven loads had been delivered that morning. Only once before that day in dumping the load had the truck been “ stuck,” and then it got out on its own power. On this occasion the motor had been left running, the driver was on the truck and it could have been moved on short notice. The driver himself had given notice to defendant’s agent that the mixer and truck were to be at the track that day, and asked him to give a “ slow order ” to the trains. There was no legal duty resting on the contractor to dump the gravel on the other side of the track and bring it over in wheelbarrows to serve the convenience of defendant. Even the greater safety of such a plan is doubtful. If it is a question of fact as to whether reasonable care required it, the jury have decided it.
The usual signals for the crossing were given, but it is a question of fact if these were, under the circumstances, sufficient not only to relieve the defendant from negligence but to charge the driver with contributory negligence. He was in a position of danger while performing a duty in connection with work of the State. Whether in performing those duties he had the right to rely, in relaxing his vigilance, on the notice given the defendant and its duty to slow up or stop the train if possible when it appreciated the situation, and whether he exercised the care of a reasonably prudent man under the circumstances, were questions for the jury. (McDade v. International R. Co., supra; Smith v. Bailey, 14 App. Div. 283.)
There is, it seems to me, ample evidence upon which the jury might find, as they did, that the driver was free from contributory negligence. It is perhaps true that the charge dealt in abstractions and lacked the definite application of the law to the facts that is required. (People v. Odell, 230 N. Y. 481; People v. Montesanto, 236 id. 396; Matter of Taylor, 197 App. Div. 865.) But the *52omission to state definitely what I believe to be the correct rule was favorable to defendant.
I favor affirmance of the judgment.
Crouch, J., concurs.
Judgment reversed on the law and facts and new trial granted, with costs to appellant to abide event.