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Caffi v. New York Cent. & H. R. R.

102 N.Y.S. 633 Court N.Y. App. Term Decision date 1907-02-11 English

Delivered by MacLEAN, J.

Contents

Majority

p. 633
(52 Misc. Rep. 570)
CAFFI v. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, Appellate Term.
February 11, 1907.)

Headnote

Master and Servant—Injuries to Employé—Contributory Negligence.
Where an employé of a railway places himself on the track in a position of danger, without any emergency or exigency therefor, he is guilty of negligence, and cannot recover for injuries received, even if defendant were negligent.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 723-742, 795-800.]
Appeal from Municipal Court, Borough of the Bronx, First District.
Action by Raffaele Caffi against the New York Central & Hudson River Railroad Company. From an order setting aside the verdict of a jury in favor of plaintiff, he appeals. Affirmed.
See 96 N. Y. Supp. 835 .
Argued before GILDERSLEEVE, MacLEAN, and AMEND, JJ.
L. Edwin Oppenheim, for appellant.
Charles C. Paulding for respondent.

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 dutjq 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. Co. (Sup.) 100 N. Y. Supp. 235 . The verdict in favor of the plaintiff was therefore properly set aside, and the order should be affirmed, with costs.

Order affirmed, with costs. All concur.