Caffi v. New York Central & Hudson River Railroad

MacLean, J. The duty of the plaintiff, in the employ of a construction company, required him to watch for and warn workmen" of the approach of trains while they "were at work in the yard of the defendant at Fifty-sixth street and Park avenue. At the time he was struck by an engine of the defendant he was obviously not acting in the performance of his duty, which, as appears from the evidence, might and could have been performed from a position of safety. That through negligence or negligent ignorance he stood at the time of the accident in a position of danger, without any emergency or exigency therefor, does not entitle him to recover from the defendant, even if it were negligent, because he was himself at fault. Keeler v. N. Y. C. & H. R. R. R. Co., 114 App. Div. 807. The verdict in favor of the plaintiff was, therefore, properly set aside and the order should be affirmed, with costs. Gildebsleeve and Amend, JJ., concur. Order affirmed, with costs.