#### JACOB OMINGER, Appellant, *v.*THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

*Contributory negligence*— *not looking in loth directions*— *when not negligence*— *Provisions of agreementbetween railroad company and contractor—who bound by.*

Although, as to travelers about to cross a railroad track, it is negligence, as matter of law, not to look in both directions, in order to see whether a train is approaching, such rule cannot be applied to persons employed in performing certain work in and upon the tracks and road-bed.

H. and M. agreed with the defendant to perform certain work for it, the contract providing that the defendant should not be liable for any injury sustained by the contractor, his sub-contractor, workmen or laborers, by reason of the negligence of the defendant, its agents or servants, in operating the railroad. The plaintiff, an employe of H. and M., was injured while working upon the track, and this action was brought by him to recover damages therefor.

*Held,*that as the plaintiff was not a party to the contract, and was not shown to have had knowledge thereof, he was not bound by The provisions contained therein, and that defendant was liable for the injuries sustained by him.

*160Appeal from a judgment .in favor of the defendant, entered upon the trial of this action at the Circuit.

Holler & McEncroe entered into an agreement with the defendant for the construction of a certain part of its road, the contract containing among others the following provisions:

“ No claim of any kind shall accrue against the company from any loss of life or injury to the person, or from injury to any animals or other property used by the contractor, or by any person who, as sub-contractor, workman, laborer, or otherwise, shall perform any work, labor or services, or furnish any materials herein contracted for, which may arise by reason of the operating of said railroad, or by means of its engines, cars or machinery, or by the acts of its agents or servants, whether the same occur by accident, negligence or otherwise. And should any such claim be legally made against the company, by reason of the aforesaid premises, the contractor shall pay and discharge the same, together with all the costs and expenses, and shall indemnify the company against all liability on account thereof.”

The plaintiff, an employe of the contractor, having been injured, brought this action to recover damages therefor.

*E. W. Paige,*for the appellant.

Whether plaintiff’s negligence contributed to the accident, was a question of fact. (Am. Law Reg. [N. S.], May, 1874; *Westchester and Phil. R. R.*v. *McElwel,*67 Penn., 311, 315; *Davis*v. *N. Y. C. and H. R. R. R.,*47 N. Y., 400; *Haekford*v. *N. Y. C.,*6 Lans., 381; *Gonzales*v. N. *Y. and H. R. R.,*39 How., 407 ; *B. and O. R. R.*v. *State,*36 Md., 366; *Mayo*v. *B. and M. R. R.,*104 Mass., 137; *Barton*v. *N. Y. C. and H. R. R. R. Co.,*1 N. Y. S. C. [T. & C.], 297, affirmed in Court of Appeals upon the opinion of this court, April 30th 1874 ; *Goodfellow*v. *B. H. and E. R. R.,*106 Mass., 461; *Ernst*v. *H. R. R. R.,*35 N.Y., 9.) The provision in the contract presents no obstacle to the plaintiff ’s recovery. *(Cole*v. *Hughes,*54 N. Y., 444, 448.) Defendant was guilty of negligence. The benefits of the statute requiring signals to be given when approaching a crossing, are not restricted by its terms to travelers, and it would make no difference if they were. *(Directors of N. E. R. Co.*v. *Wanless,*L. R. [7 H. L.], 12; 6 Q. B., 481; *Cook*v. *N. Y. C. R. R.,*5 Lans., 401.) Besides, *161plaintiff had a right to rely on defendant’s custom of giving the signals there. *(Barton*v. *N. Y. C. and H. R. R. R.,*1 N. *Y.*S. C. [T. & C.], 297; *Ernst*v. *H. R. R. R.,*35 N. Y., 9; S. C., 39 id., 61.) The proof of the omission to give the signals was sufficient to go to the jury. *(McGrath*v. *N. Y. C. and H. R. R. R.,*1 N. Y. S. C. [T. & C.], 243; *Renwick*v. *N. Y. C. R. R.,*36 N. Y., 132.)

*S. W.*Jackson, for the respondent.

The plaintiff is barred of his right of action by the provisions of the contract between his employers and the defendant. (Chap. 140, Laws of 1850, § 44.) A railroad company is not liable for injuries caused by its own gross negligence, to persons who are at the time" trespassing upon its track. *(Nicholson*v. *Erie R. Co.,*41 N. Y., 525; *Terry*v. *N. Y. C. R. R. Co.,*22 Barb., 574; *Tonawanda R. R. Co.*v. *Munger,*5 Denio, 255 ; S. C., 4 Com., 349; *Clark*v. *S. and U. R. R. Co.,*11 Barb., 112; *Matze*v. *N. Y. C. and H. R. R. R. Co.,*1 Hun, 417; *Bush*v. *Brainard,*1 Cow., 78.) There is also no liability for such injuries where the person injured is upon the track by the license of the railroad company. *(Nicholson*v. *Erie R. Co.,*41 N. Y., 525; *Matze*v. *N. Y. C. and H. R. R. R. Co.,*1 Hun, 417; *Hounzell*v. *Smythe,*97 Eng. Com. Law, 731; *Southcote*v. *Stanley,*1 Hurlst. & Norm., 246; *Bolch*v. *Smith,*7 id., 732; *Gautrel*v. *Egerton,*L. R. [2 C. P.], 370.)

Learned, P. *J.:*

The plaintiff was a workman in the employ of a contractor who had a contract with the defendants to do certain work on their railroad. The place where some of the work was to be done, was at a highway crossing called Phillips’. While the plaintiff was there, engaged in this work, he was struck by an engine, passing on the track, and injured. For the injury he brings this action. At the trial he was nonsuited.

He testifies that he was building a culvert or cow-trap at Phillips’ crossing; that that is a place where the highway crosses the railroad track; that while he was measuring a stone, one train went to Albany; that he wanted to go over on the other side; that while he did that another train came along and struck him; *162that he stood looking at the stone when the train struck him ; that he was measuring it for the place ;-that the bell was not ringing on the train that struck him; that he was listening for it; that the whistle did not blow; that he was at'work on the cow-trap on the west side; that at the time he was struck he was measuring a stone which lay, maybe, two feet from the track; that the whistle did not blow and he did not look.

It appeared that the north track, on which this engine was, could be seen for a mile and a half from the crossing. I do not see how the plaintiff could in any way be called a trespasser. First, he was on a highway crossing; so I understand the evidence, which is not altogether clear; second, he was a workman in the employ of a contractor engaged to do work at that place.

As to the question of the defendant’s negligence, the testimony is conflicting. . The plaintiff testifies that the bell did not ring; another witness testifies that he did not hear it j while the engineer supposes he rang the bell, and the fireman testifies positively that he did. I do not-think that we can say that there was nothing for the jury on this point.

A point more strongly insisted on, however, is the alleged contributory negligence of the plaintiff. Ordinarily, this is a question for the jury. *

As to travelers about to cross a track, it'is held negligence, as matter of law, not to look in both directions, in order to see whether, at that time, a train is approaching. But it is hardly possible to apply that rule, in its strictness, to a workman engaged on the track. The traveler looks once, and crosses; the workman remains. If it is the workman’s duty, as a matter of law, to look in both directions, he must do this as often as it is possible for a train to come in sight. The length of the track in sight from the crossing, was about a mile and a half. A train might pass over this in, perhaps, five minutes. He ought, therefore, under this rule, to look in this direction as frequently as every five minutes, and in the other direction, probably, as often. Such an obligation would be inconsistent with his proper attention to his work. I do not think, therefore, that the rule which has been applied to *163travelers crossing the track, is applicable to workmen whose employment requires them to remain on or about it. Such seems to be the doctrine of *Barton*v. *N.*Y. *C. and H. R. R. R. Co.,*above cited. So, in *Goodfellow*v. *B., H. and E. R. R.,** the plaintiff was in the employ of a contractor, at work for defendants. He was holding the guy of a derrick; an engine backed down and injured him. At the trial a verdict was directed for the defendants; but in the higher courts this ruling was reversed. The court said that “there was evidence that he was rightfully where be was, and was not in fault in being engrossed in his work and unaware of the approach of the engine until it was too late to avoid it.” It seems to me, therefore, that the question of the plaintiff’s negligence in this case, was one of fact, which should have been passed upon by the jury.

It is further urged by the defendants, that they are not liable for the reason that, by the terms of their contract with the contractor, they agreed that they would not be liable. The plaintiff was not a party to this contract. It is not even in evidence that he knew anything of it. I do not think that the defendants can contract with one man for the privilege of doing a wrongful act to another without his consent.

Assuming even that the accident occurred a few feet from the highway, still, the plaintiff was on the defendant’s land, not by a mere license. He was there to fulfill a contract; he was not a mere stranger roaming over the property, but he was a person on lawful business — like the workman sent to repair gas fixtures, † This view is confirmed by the decision of the Court of Appeals in *Coughtry*v. *Globe Woolen Company.*‡

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

Present — Learned, P. J., and Boardman, J.

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

*

 Filer v. N. Y. C. Railroad Co., 49 N. Y., 47, 50; Barton v. N. Y. C. and H. R. R. R. Co., 1 N. Y. S. C. (T. & C.), 297.

*

106 Mass., 461.

†

 Indermaur v. Dames, L. R. (2 C. P.), 311; see Smith v. Dock Company, 3 id., 326.

‡

**56 N. Y., 124.