MARY EDDERY, as Administratrix, etc., of ANDREW EDDERY, Deceased, Respondent,
THE INTERBOROUGH RAPID TRANSIT COMPANY, Appellant.
APPEAL by the defendant, The Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28th day of June, 1911, upon a verdict of a jury for $5,000, and also from an order entered in said clerk's office on the same day, denying the defendant's motion for a new trial made upon the minutes.
Ambrose F. McCabe [James L. Quackenbush with him on the brief], for the appellant.
Thomas J. O'Neill, for the respondent.
JENKS, P. J.:
This action is brought by the administrator of a servant against a master for negligence. The defendant worked a railroad elevated upon a structure in the city of New York. About
11 P. M. of January 7, 1910, the servant was found dead in the street beneath that fabric. The sole witness of the casualty, a watchman in that street, saw this servant move along the structure with a lantern, and then step upon a plank, when the plank turned and the servant fell through an opening into the street.
For some months before, and at this time, an independent contractor was lowering the structure so that it would pass under the line of the Manhattan bridge. In that work a new structure was building beneath the old, and gradually rising from Manhattan bridge toward Chatham square had reached a point about 200 feet east of Chatham square and 21/2 to 4 feet below the level of the old structure. The trains ran only on the north and the south sides of the old structure; a third track and the ties between the north and the south tracks had been so far removed that an open space from 51/2 to 8 feet wide was left between the ties remaining between the north and the south tracks of the old structure and the westerly end of the new. This gap extended from the north-bound track to the south-bound track, a distance of from 15 to 18 feet. It was not of the permanent structure, but was temporary and incidental to the unfinished work.
On the night of the accident there were two planks across this opening, each 12 feet long, 11/2 to 2 inches thick, and 1 foot wide, which slanted up from the new structure to the old. The night supervisor of the defendant testified that they had been put there for the day men who worked on construction in case they wished to pass from the new to the old structure--'in case they wanted to go to Chatham square station.'
The plaintiff's witness Sullivan, a former flagman of the defendant, testifies that they used to cover the hole 'much more' with boards, sometimes completely, but that two weeks before the accident it was not completely covered, and that for three or four days before the accident, so far as he knew, there were but two planks.
The testimony of the defendant's track supervisor, of its night supervisor, and of its foreman of the trackmen, is that the servant, a trackwalker, had no duties whatever which called him to go upon the new structure. And there is evidence
that a trackwalker's duty was to walk between the tracks to see that they were safe. Sullivan did testify that a trackwalker must necessarily step upon the planks in case of the coming of a train, but admitted that it was at least six feet from the tracks to the planks; and the testimony of several witnesses called by the defendant indicates that those walking in the tracks avoided oncoming trains by standing upon a girder which was nearly two feet wide--so that I think that there was not sufficient evidence to support the conclusion that a trackwalker, in order to avoid a train, was compelled or accustomed to go upon these planks. But, in any event, there is no evidence that when the servant took this course there was any train approaching on the track in which it was his duty to walk. And there is no evidence that there was any peculiar reason for the servant in the discharge of his duty, or a supposed discharge, or for self-protection, to step upon this plank when he did so.
The way, then, which the servant took to his death is not shown to have been one in the permanent structure where the servant worked, but a temporary passage over an opening incidental to the unfinished work of an independent contractor. And there is not sufficient proof to justify the conclusion that this way was ...