The plaintiff, an employee of a contracting company which was engaged in excavating, for the new subway at Longacre square, between ' Forty-third and Forty-fourth streets, in the -city of Yew York, a trench running parallel with and east of the north-bound track of the defendant, was assisting in the erection of a fence, along the side of the trench, distant about thirty inches east of said north-bound .track.
The place where the plaintiff was working was obviously dangerous, as it appeared that the overhang of the defendant’s car was about fifteen inches, leaving a space between the fence and the outermost edge of the car of about fifteen inches.
On February 14,1902, the plaintiff had been thus engaged for about an hour and a half, and, while in the act of driving a nail into a wooden board upon the fence, was knocked down by the front part of the defendant’s car and injured.
The plaintiff admitted that he did not see the car which struck him and that he relied upon the sounding of the gong as a warning of its approach and that it had been his practice to look for cars from time to time, but that he did not absolutely depend upon his looking, but relied also *200upon the warnings that he expected would be given him by the motormen.
It was testified, that, during the time the plaintiff was working upon the fence, the motormen of the defendant’s cars would give warning of their approach by sounding their gongs, and that, whenever the plaintiff was thus apprised of an approaching car, or whenever he would notice one coming toward him, he would walk to a bridge which had been built across the trench at a distance of about thirty feet from the. place where he was working and thus get out of the way of the car.
The motorman .expressly admitted that he was aware that the plaintiff and others were engaged in constructing the fence.
The court, in its instructions to the jury, referring to the rule of contributory negligence applicable to the case, charged as follows: “ He (plaintiff) was also familiar with the fact that cars were almost constantly' running along there, as our common experience will teach us. So therefore, under such circumstances he was bound to exercise that care, prudence and diligence which a careful man would exercise, being placed in the position which he was placed in. If he failed to do so and his failure to exercise the degree of care contributed to the injury in question, in that event your verdict will be for the defendant.”
The defendant’s counsel asked the court to charge the jury that the plaintiff, working in a place- known to be dangerous to him, was required “ to keep his senses alert, and to be vigilant .to look out for cars and avoid them at the time of. their passage.” This the court declined to do and in place thereof charged that the ¡plaintiff was bound to exercise that care and diligence that a careful and prudent man would exercise under the conditions in which he was working.
The request was substantially one -applicable to the degree of care required of pedestrians crossing railway tracks in a city. It seems to me that the rule of law, embodied in the request, was altogether too broad when applied to persons whose duty necessarily required them to work on *201or so near a railroad track that it would be perilous to remain at the place of work when cars are in the act of passing.
In Smith v. Bailey, 14 App. Div. 283, a street sweeper had not noticed the vehicle that struck him because his back at that moment was turned toward it, and the court held that: “ If it were necessary in the prosecution of his business that he should be in that position, of course no negligence could be imputed to him. If by reasonable care he could have put himself in a position where he could protect himself from dangers of this description, then he was bound to use this care, having a view to the work which he was engaged in prosecuting. We think, therefore, that this question was one which the jury was called upon to consider, and which they had a right to determine.” >
Dipaolo v. Third Avenue R. R. Co., 55 App. Div. 566, was also a street sweeper’s case which followed the rule laid down in the Smith case, supra.
In Bengivenga v. Brooklyn Heights R. R. Co., 48 App. Div. 515, the plaintiff, “ at the time of the injury was carrying hot asphalt upon a shovel from the side of the track and placing it between the rails of the track” and was struck by one of the defendant’s caKrs under circumstances which ordinarily would have been held, as matter of law, as constituting contributory negligence. The court held that the defendant was chargeable with notice of the fact, that workmen were required to be on the track, both by its contract to repair the street made with the firm by whom plaintiff was employed and the actual conditions existing; that the person operating the car “was required to exercise extreme care for the protection of the workmen and that abundance of warning was required,” that the circumstances required that the car should be “ under such control that it could be stopped practically upon the instant;” that “whether plaintiff should have observed the car or not became a question of fact for the jury;” that the plaintiff “had the right to assume that warning would be given * * * and that plaintiff might rely upon the presumption that the operator of the car would *202stop the same when it reached the point where he was upon the track.” The reasoning in the Cases just cited does not rest upon the circumstances, in the one case, that the person injured was in the employ of the municipality, or, in the other, that his employer happened to have a contract with the defendant to do the work on which the plaintiff was engaged at the time of the accident, but it has reference to the peculiar conditions under which those engaged in pursuits on the highway, at or near railroad tracks, are necessarily obliged to perform their work and to the obvious knowledge of these conditions on the part of those operating the cars upon such tracks.
Bearing in mind the reason for limiting, in such cases, the ordinary rule of contributory negligence applicable to pedestrians, it is easy to distinguish the case of Lyons v. Avis, 5 App. Div. 193, from the present one. La the Lyons case the person was injured by a passing truck while mixing mortar upon the highway in front of a building then in course' of erection. It there appeared, that, although his employer had a permit to place material upon the street, the permit did not necessarily confer authority to utilize the street for mixing mortar. Under such circumstances, it was held that the plaintiff “ was nevertheless under protection of the law and could not be run over with impunity”—but as the plaintiff “ was utilizing the highway for a purpose foreign to its ordinary use, a purpose which is specially permitted only because of exceptional business needs ” and as it was necessarily “ fraught with danger, it called for vigilance corresponding to the exigencies of the situation.” Under these circumstances the court held that the plaintiff could not recover unless he used “ diligence in avoiding danger, especially in looking out for teams.”
It will be observed that there is a wide difference between the Lyons case and the one under review, in that in the former there are absent the elements that the injured one was necessarily obliged to work at or near a fixed place ■of peril such as a railroad track over which cars were constantly passing and that the driver was charged with knowl*203edge of the dangerous conditions under which the work was being done, so as to require him to give warning of his approach.
If the defendant was entitled to the instructions requested by him, then he was entitled to a dismissal of the complaint. It was admitted by plaintiff that he did not look for nor observe the car that struck him, and if it was his duty “to be vigilant to look for cars and avoid them at the time of their passage,” then there was nothing to submit to the jury.
¡Nor can it be said as matter of law that the plaintiff had sufficient space wherein to remain in safety. The proofs affirmatively show that the situation was a dangerous one, and it does not appear that' upon the trial there was any doubt upon this point. If the defendant had any intention of raising an issue of fact as to the sufficiency of this space as a place of safety, then he would at most have been entitled to have had that question submitted to the jury with appropriate -instructions as to the laws of contributory negligence applicable to a situation, which afforded ample space within which to work in safety. O’Connor v. Union R. Co., 67 App. Div. 99, 101.
No such request was made and, as the defendant’s motorman admitted that he knew that the plaintiff and others were working near the track and that he “ came on ringing Ms bell,” a fact which was contradicted by the plaintiff and Ms witnesses, the refusal to. charge the jury as requested by the defendant’s counsel was not error, '
The judgment is affirmed with costs.