La Placa v. Lake Shore & Michigan Southern Railway Co.

The action is for damages resulting from the death of plaintiff’s intestate, caused through the negligence of the defendant. The deceased was working for the defendant on its railroad, and was struck by a train and killed. The jury rendered a verdict in favor of the plaintiff.

' The defendant urged upon the trial, and still insists, that the evidence failed to show either that it was negligent or that the deceased was free from contributory negligence; and those questions were presented by various exceptions, as well as by a motion made on defendant’s behalf for a new trial, upon the minutes of the presiding justice. The trial court held against the defendant’s contention. The accident happened on the morning of August 31, 1906, at a point about a mile west of Angola, where the defendant has four tracks, being the main line of its railway from Buffalo to Chicago. The tracks are numbered, respectively, 1, 2, 3, and 4, from the south side to the north. On the two southerly tracks, Nos. 1 and 2, the defendant runs its west-bound trains; No. 1 for freight trains, and No. 2 for passenger trains. On the two northerly tracks, 3 and 4, its east-bound trains are run; passenger trains on No. 3 and freight trains on No. 4. The tracks are straight toward the east for the distance of about one-half or three-fourths of a mile. The men, about

It was contended on behalf of the plaintiff that the deceased was not sufficiently or adequately warned of the approach of the express train, and the sole question submitted to the jury as regards the defendant’s negligence was its failure to give reasonable, sufficient, and adequate warning to the deceased of the approach of -this train. We think this question, as well as that.of the contributory negligence of the deceased, was properly submitted to the jury, and that the evidence sustains the verdict. At the time the warning was given the deceased was busily engaged in his work, and, besides, the freight train, consisting of about 70 cars, to some extent obstructed the view of the approaching express train. Beyond that the bell of the freight train had commenced ringing. The track was ready for that train to proceed. The foreman, who was standing between tracks 1 and 2 when he gave the warning, stepped away from the freight train track, and it is not at all unreasonable that the deceased should have assumed that the warning was intended for the freight train.

It is contended, however, on behalf of the defendant, that the failure of the foreman to properly warn the deceased was the act of a fellow servant, for the negligent performance of which the defendant is not liable. Very likely that would be true under the common-law rule (Riola v. New York Central & Hudson River R. R. Co., 97 App. Div. 252 , 89 N. Y. Supp. 945 , affirmed in 184 N. Y. 596 , 77 N. E. 1196 ; Curran v. Manhattan Railway Company, 118 App. Div. 347 , 103 N. Y. Supp. 351 ), but it seems clear that under the provisions of the employer’s liability act (Laws 1902, p. 1748, c. 600), as supplemented by the so-called Barnes act (Laws 1906, p. 1682, c. 657, being section 42a of the railroad law), the foreman was the alter ego and vice principal of the defendant as regards the negligent act, and that it is liable therefor. Schradin v. N. Y. C. & H. R. R. R. Co. (Sup.) 109 N. Y. Supp. 428 ; Brown v. N. Y. C. & H. R. R. R. Co. (decided in this department May 5, 1908. Not yet officially reported) 110 N. Y. Supp. 514 . We think the evidence sustains the

The judgment and order should therefore be affirmed, with costs. All concur, except McLENNAN, P. J., and WILLIAMS, who dissent.