Matrusciello v. Milliken Bros.

“Q. And when they started up in this way, when you were only about two or three feet in front of them, was any signal of any kind given? * * * A. No signal. Q. No bell rung or whistle blown? A. After they brought me on the locomotive, then it began to ring, the bell.”

Testimony that no signal was given when the plaintiff was withm two or three feet is not testimony that no signal was given at all. But, in any event, so far as the common-law right of action is concerned, I think that, even if no signal was given, the testimony establishes that the plaintiff assumed the risk of the situation. He testifies that he had worked about this place for 14 months and for a considerable period in the nighttime; that in the nighttime he saw the trains going and coming; that they started without any signal of any kind; and that he had observed this twice a week for six months. He also testifies that he saw the cars on the track when he passed over the rails, and that he saw them again when he set out to return. In Caron v. Boston & Albany Railroad Co., 164 Mass. 523 , 42 N. E. 112 , the court say:

“There is nothing to show that it had not been customary to switch cars on to tracks already occupied without warnings or signals save such as would naturally be given to one another by those engaged in the work during the whole time that the plaintiff’s intestate had been working in the yard,

which, as his widow testified, was two years and four months. It does not appear that any change had been made in the mode of doing the business so as to make it more dangerous after he entered the defendant’s service. The law is well settled that, under such circumstances, the servant assumes the risk of such dangers as ordinarily are connected with the service in which 'he is engaged. He enters the business as it is, and cannot he heard to complain that it might have been made safer, or that it was conducted in a hazardous manner. Goodes v. Boston & Albany Railroad, 162 Mass. 287 [ 38 N. E. 500 ], and cases cited. O’Maley v. South Boston Gaslight Co., 158 Mass. 135 [ 32 N. E. 1119 , 47 L. R. A. 161 ].”

■" The circumstances are stronger in the case at bar, inasmuch as the plaintiff testifies affirmatively that no signals were employed. In the common-law aspect of the case, the question of assumption of risk is not necessarily one for the jury. Bushtis v. Catskill Cement Co., 128 App. Div. 780 , 113 N. Y. Supp. 294 , and authorities cited. So far as liability under the employer’s liability act is concerned, the alleged failure to promulgate rules is not within its scope. Davenport v. Oceanic Amusement Co., 132 App. Div. 368 , 116 N. Y. Supp. 609 ; Dresser’s Employer’s Liability, p. 318. And neither the action of Brown, the foreman, nor that of the engineer, fastens liability upon the defendants. The case does not present the question of providing a safe place to work. For aught that appears, the plaintiff, at work in a perfectly safe place, was told where he could go to find a shovel, and crossed the tracks only for that purpose. Certainly Brown, who appears as a foreman, had no higher duty to perform for the master than had the master himself. In Di Napoli v. N. Y., N. H. & H. R. R. Co., 136 App. Div. 334 , 120 N. Y. Supp. 905 , we have recently held that when a workman was sent on an errand across a railroad track, near which he was at work, to get a tool, there was no duty cast upon the master to have some one to watch and warn the plaintiff against oncoming trains; the court, per Burr, J., saying:

]?3- “To hold that, because a workman whose place of work was perfectly safe was occasionally sent on an errand across a railroad track under circumstances which did not require him to pay attention to anything except his own safety while crossing such track, it was necessary to have some one to watch and warn him of approaching trains, would be an unreasonable burden upon the master. One might just as well contend that if a gang of men were engaged in work upon one side of a street or avenue, and it became necessary to send one of them on an errand across such street, the master should detail some one to keep watch and take care of him while he passed from one side of the thoroughfare to the other.”

' Moreover, there is no evidence that Brown was a superintendent within the purview of the employer’s liability act. For aught that appears, he was but a fellow servant. See Abrahamson v. General Supply & Construction Co., 112 App. Div. 318 , 321, 98 N. Y. Supp. 596 et seq. The engineer was not a vice principal within the scope of section 42a, Railroad Law (Consol. Laws, c. 49), as the defendants were not a railroad corporation or the receivers thereof. He was not a superintendent. In McHugh v. Manhattan Ry. Co., 179 N. Y. at 384, 72 N. E. 314 , where the train was backed down upon a workman, the court, per Cullen, Ch. J., say :

“Doubtless had the train been started by the engineer without a signal, or had the conductor or one of the guards improperly given a signal for the

train to move, it would have been the act of a fellow servant, and the defendant would not have been liable therefor.”

The judgment is affirmed, with costs.

HIRSCHBERG, P. J., and BURR and CARR, JJ., concur. RICH, J., dissents.