#### William Horgan, Appellant, *v.*Interborough Rapid Transit Company and Rapid Transit Subway Construction Company, Respondents.

(Supreme Court, Appellate Term,

March, 1912.)

Negligence — Acts or omissions constituting negligence — Contributory negligence — Guarding and warning against dangers.

A judgment dismissing the complaint in an action for personal injuries reversed on the ground that, defendant’s foreman having promised the plaintiff to send a watchman to guard the place where he was working, a question was presented for the jury.

Appeal by the plaintiff from a judgment of the City! Court of the city of Xew York dismissing the complaint.

Francis X. McCollum (Raphael Link, of counsel), for appellant.

*629James L. Quackénbusk, for respondent Interborough. Rapid" Transit Company.

Lyman A. Spalding, for respondent Rapid Transit Construction Company.

Seabury, J.

This action was brought to recover damages for an injury alleged to have been caused by the negligence of the defendants. The plaintiff was an employee of the Rapid Transit Subway Construction Company. At the time of the accident the plaintiff was “ plumbing ” the last column of the platform at One Hundred and Tenth street. The base of this column was about four feet away from the rail of the north bound track. The accident- happened at about ten o’clock in the morning. At nine o’clock the plaintiff had reported to his foreman that there was no watchman or signalman at the place where he was working and that one was needed. The foreman replied that *“*he would, attend to it.” The plaintiff returned to his work at the base of the column and, while he was leaning over measuring the column, he was struck by one of the cars of the defendant Interborough Rapid Transit Company.

At the close of the plaintiff’s case, the' court dismissed the complaint against both of the defendants.

In so far as the defendant Interborough Rapid Transit Company was concerned, there was no evidence of negligence upon its part, and the complaint was properly dismissed.

A different situation exists as to the Rapid Transit Subway Construction Company. In view of the fact that the foreman, who was in the employ of this defendant, promised the plaintiff to send a watchman to guard the place where he' was working, a question of fact was presented which should have been left to the jury for their determination. McDonald v. Metropolitan St. R. Co., 167 N. Y. 66.

The plaintiff cannot be said, as matter of law, to have _ assumed the risk by remaining at his work in view of the promise of the foreman to send a watchman. Whether or not the plaintiff assumed the risk as a matter of fact was for the jury. Rice v. Eureka Paper Co., 174 N. Y. 385.

*630As to the Interhorough Rapid Transit Company, the judgment is affirmed, with costs.

As to the Rapid Transit Suhway Construction Company, the judgment is reversed and a new trial ordered, with costs

to the appellant to abide the event.

Guy and Bijur, JJ., concur.

Judgment affirmed, with costs, as to Interhorough Rapid Transit Company.

Judgment reversed and new trial ordered, with costs to appellant to abide event, as to Rapid Transit Subway Construction Company.