PATRICK J. SHEA, Appellant,
WESTINGHOUSE ELECTRIC AND MANUFACTURING COMPANY and THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Respondents.
APPEAL by the plaintiff, Patrick J. Shea, from a judgment of the Supreme Court in favor of the defendant, The New York, New Haven and Hartford Railroad Company, entered in the office of the clerk of the county of Westchester on the 16th day of June, 1909, upon the dismissal of the complaint as to said defendant by direction of the court at the close of plaintiff's case on a trial at the Westchester Trial Term, and also from an order entered in said clerk's office on the 21st day of
May, 1909, setting aside the verdict of a jury in favor of the plaintiff and against the defendant Westinghouse Electric and Manufacturing Company for $1,500.
Michael J. Tierney, for the appellant.
E. Clyde Sherwood [Amos H. Stephens with him on the brief], for the respondent Westinghouse Electric and Manufacturing Company.
Nathaniel S. Corwin [Charles M. Sheafe, Jr., with him on the brief], for the respondent New York, New Haven and Hartford Railroad Company.
The Westinghouse Company had a contract with the New York, New Haven and Hartford Railroad Company for the electrifying of the lines of the latter company between the city of New York and Stamford, Conn. The plaintiff was an employee of the Westinghouse Company, and was what was known as a 'ground man,' his duties being to act as an assistant to a man who was engaged at the time of the accident in installing insulators upon the poles or superstructure used for carrying the wires which were to transmit the power for the operation of the trains of the defendant railroad company. The evidence shows that the work was being carried on all the way from Wakefield to Rye, and occasionally as far east as Stamford, and that the insulators were being placed at the rate of from four to six per hour, the installation being for the most part upon poles, and we may assume that these were the usual distance apart, so that the place in which the work was to be performed was along the right of way, but not upon the tracks, of the railroad company. The exact location of the accident was in a cut about 150 feet to the westward of the station at Mount Vernon. There were four tracks, two of them at the extreme outside being used generally for local traffic, and two inside tracks being devoted to express trains. The two middle tracks at this particular point were separated from the outside tracks by fences, this apparently being one of the precautions made use of by the railroad company in
taking care of its passenger traffic at the station. On the day of the accident the Westinghouse Company had work trains upon each of the two outside tracks, and the entire traffic of the railroad was concentrated upon the middle tracks. To the westward of the point where the plaintiff was injured there was a curve in the railroad which prevented trains from being seen until they were within about 150 feet. The plaintiff testified that he was told by his foreman to get the insulators and other materials from the work train at the command of the man who was engaged in installing the insulators, and that the latter directed him to go to the work train, which was on the opposide side of the track from the point where the work was being done, and to bring the necessary materials; that this work had been going on for three or four days, with the plaintiff taking the materials from the work train and carrying them to the lineman; that on the day in question he had climbed over the fences and secured two insulators weighing about twelve pounds each, and had climbed back over one of the fences, and was upon the express tracks, when his companion, who was acting in a like capacity for another lineman, and who was just ahead of him, called out that 'a fast one' was coming, meaning an express train; that plaintiff then looked in both directions and saw no train; that he then dropped the insulators and started to retrace his steps and to climb over the fence which he had just passed over; that he reached the top of the fence and that the defendant's train, without sounding any warning, rushed past, the cars scraping him as they passed, and that he finally fell down on the ground away from the train, receiving serious injuries. There was evidence in the case that there were overhead crossings of the railroad tracks within a short distance in either direction, and there was no evidence that the plaintiff had been directed in what manner he should go to and from the work train, though it appeared that he had been climbing the fences and crossing over the tracks during that day. The learned trial court dismissed the complaint as to the railroad company, holding that there was no evidence of any negligence on the part of that company, and, upon the jury finding a verdict against the Westinghouse Company, the motion to set the same aside and
to grant a new trial was granted, the court holding that the verdict was against the weight of evidence as to all of the material issues. The plaintiff appeals from the judgment and order.
We think it entirely clear that the plaintiff has failed to show a breach of any duty owed by the railroad company to him. The railroad company, so far as the evidence discloses, had no reason to expect the plaintiff to be upon its express tracks at this particular time and place. It, therefore, owed him no duty of warning. It was operating its trains in a cut twenty feet in depth, where overhead crossings had been provided, and where it had fenced off its tracks from the local tracks for the very purpose of securing safety in operation. It had in no sense invited the plaintiff to climb over these fences and to intrude upon its tracks; the very presence of the fence was notice to the plaintiff that he was not expected to trespass upon the tracks, and he testifies that his work was not upon such tracks but alongside of them. The plaintiff and his companions were not stationed at this point to perform a general work requiring days, but were engaged in installing the insulators along the entire length of the tracks from New York to Stamford, and the mere fact that they happened at this particular moment to be at or near the Mount Vernon station, where the view to the westward was limited by a curve, did not impose any special duty upon the railroad company; the plaintiff was a trespasser upon these particular tracks at least, and the railroad company, in the absence of knowledge that he was there, owed no duty to him whatever. Besides, the plaintiff was guilty of contributory negligence as a matter of law in climbing over the fence and getting ...