KATHERINE CONNELL, as Administratrix, etc., of MICHAEL CONNELL, Deceased, Respondent,
THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 3d day of October, 1910, upon the verdict of a jury for $4,500, and also from an order entered in said clerk's office on the 21st day of September, 1910, denying the defendant's motion for a new trial made upon the minutes.
Charles F. Brown, for the appellant
R. H. Barnett, for the respondent.
JENKS, P. J.:
This action is brought under the Employers' Liability Act. It is clear enough that plaintiff's intestate was killed in consequence to the passing of defendant's train. When last seen he was standing in a space between the defendant's tracks and retaining wall, facing that wall, in an act of urination. The train was an irregular one, south bound, and traveling at the rate of 10 or 12 miles an hour. The intestate was a flagman stationed at the grade crossing of a highway in the city of Newburgh. His long hours of continuous service naturally required him to relieve such calls of nature during service. As there is no proof that the defendant furnished facilities or place for urination, it may be assumed that he was compelled to seek his own place for such purpose. The distance between the nearest rail and the wall was 5 feet 9 inches, and although the overhang of the locomotive was 18 inches, there remained sufficient space for his security if he had stood close to the wall. His position negatives the supposition that he was looking for any oncoming train, and moreover the evidence shows that his
view to the north was cut off by certain belongings of the defendant in that space. One witness describes the place as 'blinding.' Doubtless he had taken this occasion intervening the passing of regular trains. It is but surmise whether he stood too close to the rails for safety or, unheeding, stepped backwards or turned into collision.
Although the relation of master and servant was not suspended at this time ( Heldmaier v. Cobbs, 195 Ill. 172; Cleveland, C., C. & St. L. R. R. Co. v. Martin, 13 Ind.App. 485), the servant was not in his place of work. And, therefore, this case differs from the cases when the servant went to a water closet, or a lavatory, or a place to drink, or a place to eat a noontide meal or to change his clothes, when such places were either furnished by the master or at least the master had acquiesced in such uses, e. g., Ryan v. Fowler (24 N.Y. 416); Muhlens v. Obermeyer & Liebmann (83 A.D. 88); Muller v. Oakes Mfg. Co. (113 id. 689); Cleveland, C., C. & St. L. R. R. Co. v. Martin (supra). For in this case the servant had left his post and had sought this place in the premises of the master for his own personal convenience or necessity. And there is no proof that the master had indicated this place as one to be used for urination, or that the master knew or should have known that it had been so used, or that necessarily it only could be used for that purpose. 'A master's duty in respect to furnishing his servants a safe place in which to work extends to such parts of his premises only as he has prepared for their occupancy while doing his work, and to such other parts as he knows or ought to know they are accustomed to use while doing it.' (Morrison v. Burgess Sulphite Fibre Co., 70 N.H. 406, quoted in Labatt Mast. & Serv. 1845. See, too, Keenan v. New York, etc., R. Co., 2 Misc. Rep. 34; affd., 145 N.Y. 190; Ahern v. Hildreth, 183 Mass. 296.) And when the servant goes to some other part of the master's premises simply for his own convenience and accommodation, the general rule is that he is regarded as a licensee. (Schmnoske v. Asphalt Ready Roofing Co., 129 A.D. 500; O'Hare v. O'Rourke Engineering Const. Co., 135 id. 348; Haber v. Jenkins Rubber Co., 72 N. J. L. 171-174; Labatt, supra, 1846, and authorities cited.) But there is a well-recognized exception to this rule, which requires discussion of
the assigned negligence in this case. We may first disregard any question that could arise from the presence of the servant upon the tracks or from the fact that he was or should have been seen from the oncoming train. For there is no evidence that he was ever upon the tracks, and there is evidence that when last seen at the time the train was but 10 feet distant he was not upon the tracks, and which indicates that he could not have been seen from the oncoming train. The exception to the rule is expressed in Larmore v. Crown Point Iron Co. (101 N.Y. 395), as follows: 'The duty of keeping premises in a safe condition even as against a mere licensee may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege theretofore permitted and enjoyed to great danger. The case of running a locomotive without warning over a path across the railroad which had been generally used by the public without objection, furnishes an example. (Barry v. N.Y. C. & H. R. R. R. Co., 92 N.Y. 289. See, also, Beck v. Carter, 68 id. 283.)' The assigned negligence is that this train approached and came upon the intestate without warning. There is no contention that warning should have been given because of the presence of the intestate, but because there was a grade crossing 75 or 80 feet below the place where the intestate was killed. In other words, it is insisted that the breach of duty, if any, which arose solely in consequence of the existence of this grade crossing might be invoked to the benefit of this plaintiff. There was proof that the rules of the defendant required the ringing of a bell at the approach of such crossings, and there was proof that warranted a conclusion that this was not done in this instance.
But actionable negligence involves a breach of duty to the plaintiff. Negligence is 'not absolute or intrinsic,' but 'is always relevant to some circumstances of time, place or person.' (Whart. Neg. [ 2d ed.] § 25, note, and authorities cited; Cooley Torts [3d ed.], 1411; S. & R. Neg. § 8, and cases cited; Losee v. Clute, 51 N.Y. 494; Savings Bank v. Ward, 100 U.S. 195.) In Larmore v. Crown Point Iron Co. (101 N.Y. 394) the court, per ANDREWS, J., say: 'There is no negligence in a legal sense which can give a right of action, unless there
is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances.' The duty of the defendant as to those at or near the crossing could be entirely different as to those in no way related to the crossing. ( Larmore v. Crown Point Iron Co., supra; Miller v. Woodhead,104 N.Y. 471, 477.) It is not enough, then, to establish that the defendant was negligent in that it did not ring its bell, but we must go forward to inquire whether in such negligence there was a breach of duty to the intestate. It seems to me that there was no relation between the crossing and the intestate at the place where he was killed. He was not using the crossing or approaching the crossing, or attempting to cross near unto it, or approaching along the highway. Physically he was not far distant, but legally he was not in a place relevant to it. The purpose of the signal was to warn those upon crossing the highway, and perhaps for the benefit of the passengers on the train lest there might be collision. Although the question of signal in this case does not arise under the obligation of statutory requirement but under the common law, yet the application of that obligation may be considered with reference to decisions under statutes. In Harty v. Central R. R. Co. of New Jersey (42 N.Y. 468) the court approves the language of ALLEN, J., in People v. New York Central Railroad Co. (25 Barb. 199) in reference to the then existing statute that required signals at crossings: 'The only negligence alleged against the defendant was that its servants upon the engine did not ring the bell, nor blow the whistle, as required by the New Jersey law. The sole object of this law, it seems to me, was to protect persons traveling upon the highway, at or near the crossing. In the language of ALLEN, J., in the People v. New York Central Railroad Co. (25 Barb. ...