COURT OF APPEALS.

#### Elizabeth Sammon, admrx., &c., appellant, agt. The New York and Harlem Railroad Company, respondent.

*June,*1875.

*Negligence causing death*— *liability thm'efor by a fellow servant.*

It is a rule of law that to entitle a party to recover in an action for negligence, it must appear that there was no negligence on his part contributing to the injury, and when the circumstances proved are not sufficient to justify such a finding no recovery can be had.

Negligence is not to be presumed against the deceased any more than against the defendant, but it is an affirmative fact to be made to appear by the plaintiff. If the circumstances are such that it may be fairly inferred, the inference must be made by the jury and not the court.

Where the evidence, in an action against a railroad company, shows satisfactorily that the accident within the rule of law, by which ¿the deceased lost his life was attributed to a fellow servant in the employ of the com-, pany, the company is not liable.

*Johnson c& Ward and John H. Hand,*for appellant.

*Elliot F. Shepard,*for respondent.

Church, *C. J*.

It was proved by the depot master that the deceased was employed to attend the chain across Fifty-second street, on the west side of the track; that he" had no business to go on the track, nor was it his duty to do so. There was some evidence, however, given and offered tending to show that the deceased was furnished with a white and red flag, the former indicating safety and the latter danger ; and that these chain tenders some times signaled. trains, and *349if there was danger it was their duty to do so. Two cars were detached at Fiftieth street in consequence of an insecure • switch, one of them passing into a marble yard and the other striking some freight cars standing on a side track west of the main track and nearly in front of Fifty-second street. It was not known, certainly, how the deceased received the injury which caused his death, but the evidence would have justified a finding that he was struck by one of the freight cars put in motion by one of the fugitive cars detached from the train. The complaint was dismissed upon the ground, it is inferred, of contributory negligence on the part of deceased in being on the track, and this view was sustained by a majority of the general term. If the case developed no other question, it may be well doubted whether the question should not have been submitted to the jury. It is a rule of law, that to entitle a party to recover in an action for negligence it must appear that there was no negligence on his part contributing to the injury; and when the circumstances proved are not sufficient to justify such a finding, no recovery can be had *(Reynolds*agt. N. *Y. C. & H. R. R. R. Co., not reported).*

Hegligence is not to be presumed against the deceased any more than against the defendant, but it is an affirmative fact to be made to appear by the plaintiff. If the circumstances are such that it may be fairly inferred, the inference must he made by the jury and not the court; and it is difficult to deny that from the facts shown it might have been inferred that the deceased was rightfully on or near the side track. It was not a place of danger at the time. He may have gone there to exhibit the white flag indicating safety, or the red flag indicating danger. It is said that it was not his duty to do either. There was evidence of a habit to signal trains, and it would seem eminently proper for these chain men to act as flagmen as well; and they were furnished flags, white and red, for no conceivable object unless for that purpose. It is said they were used to flag teams. This would seem to *350be unnecessary as there was a chain man on each side of the street, and the chains were fastened across the street and flags of different colors for that purpose would be absurd. If the company furnished such flags it would be inferable that they were to be used. But the difficulty in the case is upon the point that the accident occurred by the negligence of a fellow servant, within the rules laid down on that subject, and for which the defendant is not liable. The new switch was not secured, it seems, so as to prevent the displacement of the rails. The switchman stated that this was in consequence of the holes being too small for the pin which fastened the lever. We do not think this slight defect is imputable to the company, as a principal, who is required to furnish proper appliances, &c. The switch was new, just put in, and if it did not work the switchman should have used crowbars as he had been accustomed before the switch was put in, or he should have held the lever himself, which he testified that he didn’t know but he could have done'but he did not try, or he should have given notice or signaled the train, or taken steps to have had the hole enlarged. He did neither and the accident, within the rules of law, is attributable to *him;*if so the company is not liable.

The point was sufficiently taken on a motion for nonsuit at the close of the plaintiff’s evidence, and again repeated at the close of the whole evidence.

The judgment must be affirmed.

All concur.