Johnson v. Terry & Tech Co.

Miller, J. : The defendant was engaged in changing the tracks "of .the Hew York Central and Hudson River Railroad Company at Fifty-sixth Street and Park avenue, Hew-York city, and the plaintiff, its servant, was at work with a number of. other me'n, under a. foreman whose principal diity appears to have been the superintendence of the portion of the work upon which the plaintiff was employed. Trains were passing over the tracks at this point at frequent inter [763] vals. While engaged at his work plaintiff was struck by a passing locomotive and received the injuries for which he seeks to recover in this action. The negligence complained of was the failure* of the defendant to. employ a watchman for the purpose of giving warning of the approach of trains, and it was admitted by the defendant on the trial that it had knowledge that no watchman employed by it was present to warn the men, and that "in fact it en5ployed no one for the purpose. Upon the trial the plaintiff sought to amend his complaint so as to bring the case within the Employers’ Liability Act (Laws of 1902, chap. 600), by alleging that the accident was due to the negligence of a person whose sole and principal duty was that of superintendence, to wit, the negligence of the foreman in failing to warn the plaintiff, but this motion was denied. As we have reached the conclusion that the court erred in nonsuiting the plaintiff, irrespective of any liability arising' under the Employers’ Liability Act, it is unnecessary to consider the refusal of the court to allow the amendment. While the servant assumes the dangers incident to the work which he is" doing, he only, assumes such dangers as arise after the master 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 (Pantsar 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 [764] care to furnish a 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 fop the jury whether the defendant failed to exercise reasonable'care to guard, the plaintiff from the dangers aris-' ing from.the operation of the trains upon the tracks where he was at work. Jt appeared that upon prior occasions an employee bf the railroad company had warned the men employed by the defendant of ilie approach of trains by blowing a whistle. The jilaintiff was not called upon to know in whose employ this man ,was or that his master had. trusted entirely to. a stranger to .the plaintiff to disci large the duty .which it owed him. The question of contributory negligence and assumption of obvious risk could not, therefore, be disposed of as one of law. The judgment should be reversed and a new trial granted, costs to abide the event. ■ . HlRSCHBERG, P. J., WOODWARD, JENKS and HOOKER, JJ., concurred. • Judgment reversed and new trial granted, costs to abide the event.