#### Sarah A. Draper, as Administratrix, etc., of Frederick Draper, Deceased, Respondent, *v.*Interborough Rapid Transit Company and Rapid Transit Subway Construction Company, Defendants, Impleaded with National Conduit and Cable Company, Appellant.

(No. 1.)

First Department,

February 7, 1908.

Evidence — motion to strike out — negligence—injury to person riding on train— liability of construction contractor obstructing track— erroneous charge.

Where in an action based on the alleged negligence of a sub-contractor in obstructing the track over which the decedent was riding, a witness testified that he said to the employees of the sub-contractor, “ When you fellows put anything -on the track you want to-keep a light out there a ways from you, about ,50 feet. You fellows came near wrecking me twice, and I don’t want' it to happen again,” the testimony on motion should be stricken out. It was not strictly erroneous for the court to deny the motion as made as the record does not show that it was confined to the erroneous statement of what had occurred before.

A cable: company engaged in installing cables in the Interborough tunnel, under a contract with the construction company, is not liable for the death of an employee of the latter company due to a collision between a flat car on which he was riding and a ladder left on the track by an employee of the cable company if the ladder was being used in its work and it exercised proper care and caution to warn others lawfully using the track of the fact that the track was obstructed. . •

The charge as a whole examined and *held*erroneous on the ground that the jury may have inferred that they were at liberty to hold the cable company liable merely because it obstructed the track.-

Appeal by the defendant, the Rational Conduit and Cable Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the- office of .the clerk of the county of New York on the 29th day. of April, 1907, upon the verdict of a jury for $12,500, and also from an order entered in said cl.erk’s office on the 4th day oi May, 1907, denying the said defendant’s motion for'' a new trial made upon the minutes.

*Franlc, Verner Johnson,*for the appellant.

*James A. Alien,*'for the.respondent.

*352Laughlin, J.:

This is a statutory action* to recover for the death of Frederick . Draper, alleged to have been caused by the negligence of the three defendants. A recovery has been had against all; but the National Conduit and Cable Company has appealed on a separate record.

On the 27th day of June, 1905, the decedent was in the employ of the defendant, the Rapid Transit Subway Construction Company, and died from injuries received while riding on a flat car through the westerly tube of the Interborough tunnel, so called^ under the Harlem river. A reel upon which cable was wound was on the flat car on which he was riding, and was tipped over through the car striking a ladder resting upon the track, and precipitating it against an empty cable reel on the ground near the track, which was thereby moved into contact with the car. This appellant was engaged in the performance of the work ■ of installing the cables for conveying the electric current in the septum between the two . tubes of the tunnel under a contract with decedent’s employer. Each subway track was constructed, in a steel tube fifteen feet six inches in height and fourteen feet in width. The tubes were parallel, and side by side, and are described as like the barrels of a double-barrel shot gun. In the septum, and toward the top of the tubes, there were conduits for the cables. At the southerly end of the tube an employee of the cable company was in charge of a winch, used for drawing the cables through from the northerly end, and he testified that he - had there placed a red lantern on a raised platform, about two feet and a half above the ground between the tracks, to indicate that Ins company was at work in the tunnel. The tubes were about 640 feet in length. At the northerly end of the tubes employees of the appellant were preparing to pass the cables through, and in the westerly tube, within a few feet of the northerly end of it, they had jdaced a ladder with the lower end resting against the easterly rail of the south-bound track which had .already, been constructed in the tube, and the upper end resting against the septum. An empty reel lay upon the ground at the east side of the track and within a few feet of the- ladder. The employees of the appellant were preparing to extend a plank from the ladder to the empty reel upon which men might stand to assist *353in “ feeding ” or passing the cables along the conduit; and there is testimony showing that they had placed a red lantern nearby to the south, between the rails of the track, to indicate that the track was obstructed. The operating company had not taken possession. The work of construction was not completed and- no passenger trains were yet running. Other contractors were working along the track from time to time at different points. The evidence on the part of the appellant tends to show that the ladder had been so placed about twenty minutes prior to the accident; that occasionally prior to this time a work train or repair train came through the tunnel, but that it was always moved slowly and was preceded by a man on foot, with a lantern with a white light to give notice to those using the track, and to enable them to remove obstructions, and that it had theretofore been propelled by a motor car; that the car on which decedent was riding was on the northerly end of a train consisting of two flat cars loaded with reels and a steam engine which was on the southerly end and was moving the train northerly through this tunnel at a very rapid rate of speed without being preceded by a man on foot, as usual; that no notice of its approach was given excepting by sounding the whistle. The evidence tends to show that as soon as the approach of the train was discovered an employee of the appellant picked up the lantern with the red light which had been placed between the tracks and waved it, but that the train continued on at a rapid rate of speed until after the accident. The conductor was standing on the northerly end of the northerly flat car. He testified that he did not see the obstruction at all, but that when they came within twenty-five or fifty feet of the northerly end of the tube he saw a man run out onto the track with a red light and that he signalled the engineer’ to stop but did not know whether the engineer acted upon it before the accident. The tube was lower in the middle than at either end. The engineer testified that the speed was about fifteen miles an hour in- the middle and was increased to eighteen on the up grade coming out; that he heard thé conductor shout and applied the brakes but that it was too late to avoid the accident.

Testimony was given by two employees of the Subway Construction Company that they had passed through the tunnel about twenty *354minutes before the accident, which Occurred about nine o’clock at nightj and notified the employees of the appellant to remove the ladder, reel and plank" as a train was about "to be sent through". One of those witnesses, in answer to a question as to what he said to the employees óf "the appellant, testified that he said: “ When "you fellows put anything on the track you want to keep a light out there a ways from you, about 50 feet. * *■ * You fellóws came near wrecking me twice, and. I don’t want it to happen again.” Counsel for-the appellant- duly moved to strike out' this answer. The motion was denied and he duly excepted. Perhaps this ruling was not strictly" erroneous, owing" to the fact that the record does not show that the request was confined to the statement as to what had occurred before, and, therefore, it would hot alone warrant" granting a" new trial; but this declaration was incompetent and most prejudicial to - the appellant and it should have been stricken out. . Wé are of opinion that the court erred in instructing the jury with respect to the liability of "the appellant.. Under" thb charge it well maybe that the jury understood that they were at liberty to hold the appellant on the mere fact that its employees placed the ladder-upon the track where a passing" train would come in contact with it, and if is very clear that they were given to understand that they might 'find the appellant guilty of negligence for placing the ladder on the track, regardless of the precautions taken, to guard against accidents "therefrom. The evidence was conflicting as to whether it was necessary for the appellant to place the ladder upon the track tó properly do this work. We are of opinion that it had a right in the circumstances to use the track and to obstruct the track in doing its work provided it exercised proper care and caution to warn others lawfully using the track of the fact that the track was obstructed, and to enable it to remove the obstruction when that became necessary to permit a train to pass. "The jury would have been justified in finding, upon the evidence, that the employees of the appellant had no notice, ■actual or constructive, that, a train was' to", be sent - through" the tube at that time until "they heard «the whistle. If so, they certainly had the fight to use the track in doing their work, and the precaution which they took in placing a red light between the tracks at the southerly end. of the tube, if it was so placed, and in placing a red light jjej;ween the tracks near where the work was being done, would have *355warranted the jury in exonerating them from the charge of negligence, especially if, as the evidence tends to show, a train had never before been sent through rapidly or without being preceded by a man on foot to give warning. The court first instructed the jury that “ If the Cable Company through its servants placed an obstruction on the tracks that were running through that tunnel, and if in placing that obstruction it was negligent and careless in so doing,” if the obstruction caused the accident, “the Cable Company must be held responsible for its failure to exercise reasonable arid due care and caution with regard to the placing of obstructions on the track.” The court also said to the jury that if the appellant “ placed that wire reel upon the tracks in a place of danger that imperiled the safety of the passing train, then the Cable Company must be held responsible for its failure to observe due care and caution in -the handling of its materials and the using of its appliances; and if because of that fact ” the decedent was killed “ it must be held responsible for the consequences.” This in effect was an instruction that placing the ladder upon the track, and leaving the empty reel near the track, constituted a failure on the part of the appellant to observe due care and caution, as matter of law. Later on the court said to the jury : “ As to the Cable Company, I substantially repeat what I have said before, that if they by their acts of omission, or commission, or negligence, placed obstructions upon or near the track so as to be dangerous to trains, that they might 7’easonably expect to come along those tracks, whatever the consequences that followed their acts they must be held liable, arid if the death of the deceased was one of those consequences, they must be held to answer.” Counsel for the appellant duly excepted to the charge of the court on this subject. Later on, it is true, the court said: “And if'you find that the Cable (Company was guilty of an act. of negligence in placing the ladder where it did, without taking proper precautions to warn approaching .trains, or placing the reel where it did without taking proper precautions to warn approaching trains, you will hold it responsible for its acts of negligence.”

We think the charge was erroneous and did not fairly present to the jury the conditions upon which the liability of the appellant could properly be predicated. The error was not cured by the further charge at the request of the appellant that its employees had *356' the same right to- use the space inclosed by the walls of the tunnel for the proper performance of their work as had ’the .operators of the work trains or any other workmen engaged upon the construction of the tunnel and railroad, which the court charged “ subject to the instructions I have given' ytiu, but that they were bound to exercise due care and caution in the handling , of their appliances, etc.,”"to which modification exception was also duly .taken,.for the court thereafter declined to charge the jury at the request of counsel for the appellant, that it could not. be held, liable on: the mere fact that, it liad obstructed the track, and exception was duly taken to such refusal. The court also declined t'o instruct the jury that the employees of the appellant had a right to rely upon the usual and customary notice and warning of the approach of a train, and that without such notice or warning it could not be charged with negligence for not removing the. obstructions .prior to the approach of the train, unless it had knowledge of its approach. This may not have ■been error, for if was quite likely a' question for the jury. Counsel for appellant, however, thereupon again requested the court to instruct the jury that the mere fact that the track was obstructed by the work which appellant was doing *“*is Hot sufficient upon'which to predicate negligence on the part of that company,” to which the court replied: *“*I have disposed Of that request already, and. I will make no further ruling than I have,” and a further exception was taken. As already observed, the jury may have inferred that they were at liberty to hold the appellant merely because it obstructed the track, and in any event it is probable that they understood that they were at liberty to hold appellant for negligence in putting the'ladder on thé track,nq matter what precautions were taken to warn or discover an approaching train.. . • •

• It follows that the judgment and order should be reversed and- a new trial granted, with costs to the appellant .to abide the. event.

Patterson, P. J., M.cLaugheiN and Houghton, JJ., concurred.

*

 See Code Civ. Proc. § 1902 *et*seq.—[Rep.

Ingraham, J. (concurring): -

I concur, in the reversal of this judgment, because I do not think that the evidence justified a. verdict that the defendant or its employees were negligent The tunnel was not in operation except for the transportation of material used in! the construction, of the *357road. The appellant was doing work in the tunnel, was justified in making such use of it as was necessary for the proper completion of the work, and its employees had the right to assume that before any of these irregular trains were operated some notice would be given. Under such circumstances it was not negligent to place a ladder upon the track, especially where it appeared by the undisputed evidence that a red lantern Was placed at some distance from where the men were at work. I think, therefore, that a verdict against this appellant was against the weight of evidence, and for that reason the judgment should be reversed.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.