Riddle v. Forty-second Street, Manhattanville & St. Nicholas Avenue Railway Co.

This action was brought to recover damages for the alleged negligent killing of David Brown Alexander, commonly known as David Brown. The plaintiff was his maternal aunt, with whom he lived and supported. It does not appear that he left other relatives.

The decedent was a carpenter in the employ of Raughton & Co., contractors, who were engaged in altering switches for the defendant company. At the time of the accident they were engaged in changing a switch on the Boulevard near Seventy-first street in the city of Rew York, at which point the tracks curve around and run down Tenth avenue. An excavation had been made under the tracks twelve or fifteen feet square, with a trench on the outer side of the curve several feet in length and between three and four feet in depth, so as to make a change of the gas pipes underneath the tracks. The decedent and one Lloyd were engaged in bracing up the tracks of the railway company and in watching the bracings as the cars passed over the tracks, the decedent acting as foreman and Lloyd as his helper. The cars upon the defendant’s road were operated by electricity taken from a power rail which had been removed for the space of about twenty-five feet on either side of the excavation, and the defendant’s cars ran over the tracks at that point by means of the momentum obtained before reaching the point ivliere the power rail had been removed. The cars passed about a minute and a half apart. . At the time of the accident the decedent and Lloyd were in the trench stooping down when one of the defendant’s cars approached from the north, passing over the excavation. As it approached the decedent leaned back in the trench so as to be out of the way of the car, and it appears to have partially passed, at which time he straightened up, bringing his face nearer to the car. In rounding the curve the rear step of the car extended farther from the

The contention of the plaintiff was to the effect that he was a strong, healthy, temperate man; and on the part of the defendant that he was very intemperate; had drank liquor several times that morning before the accident and that he had complained of pain in liis head for a number of days;

We think that the motion for a nonsuit or for the direction of a verdict should have been granted. The only negligence charged against the defendant was in not warning the decedent of the approach" of its car. Upon this question the evidence may be conflicting; some of the persons present testified that the gong was sounded, but Lloyd, who was in the trench with the decedent, did not hear it. It, however, is undisputed that the contractors employed a man to stand by the trench and give warning to the men in the trench of the approach of a car and that this was done on this occasion. But, assuming that no warning was given, the fact remains that the decedent saw the car as it approached; that he leaned back in the trench so as to be out of its way; that there was plenty of room in the trench for him to remain at a safe distance from the car while it passed, and had he done so no injury would have resulted; but by raising up and bringing his face nearer to the car while it was passing he came in collision with the step. This was his own act, and we think it was contributory negligence on liis part. He appears to have been an intelligent man, and, as we have seen, was the foreman in charge of the work.' He knew that the trench was at the point where there was a curve in the tracks around which the cars ran into Tenth avenue, and that in rounding the curve the rear of a car would be thrown a greater distance from the track than the side of the car when running upon a straight line. He was familiar with the situation; he under

The judgment should be reversed, and a new trial ordered, ■ with costs to abide the event.

Parker, Ch. J., Gray, Bartlett, Martin, Vann and Werner, JJ., concur.

Judgment reversed, etc.