Third Department, March, 1922.

[Vol. 200

Before STATE INDUSTRIAL BOARD, Respondent.

In the Matter of the Claim of FRANK BURGI, Respondent, for Compensation under the Workmen's Compensation Law, v. JACOB HOFFMANN BREWING COMPANY, Employer, and INTERBORO MUTUAL INDEMNITY INSURANCE COMPANY, Insurance Carrier, Appellants.

Third Department, March 8, 1922.

Workmen's Compensation Law of accident by employer not remitted for further proof.

notice of injury not given - knowledge shown - award reversed and matter

Where the claimant was injured by slipping and falling while going across the street from one of his employer's buildings to another in the course of his employment, and notice of the injury was not given by the claimant, knowledge on the part of the employer of the accident was not shown by testimony of the employer's foreman that the claimant told him When I come to work this morning, I fell in the middle of the street, and I can't work."

But as the undisputed proof establishes that the claimant received his injury, not while going to work but in the course of it, the award will be reversed and the matter remitted to the Industrial Board to take further proof.

APPEAL by the defendants, Jacob Hoffman Brewing Company and another, from a decision and award of the State Industrial Board, entered in the office of said Commission on the 31st day of March, 1921.

Fitch & Grant [Grant C. Fox of counsel], for the appellants. Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondent Industrial Board.

S. John Block [Maurice Leffert of counsel], for the claimant, respondent.

H. T. KELLOGG, J.:

The employer occupied a plant consisting of buildings on opposite sides of the same street. In one of the buildings he maintained a stable with stalls for twenty-eight horses. In the building opposite there was a toilet set aside for the use of employees. The claimant was employed to work in the stable. On the day of the accident he came to his work at four in the morning, and, after cleaning twenty-five of the stalls, left his work to go across the street to the toilet. In the course of his journey he slipped and fell upon the street with the result that he injured his arm. He failed to give written notice of the accident causing the injury. The Industrial Board excused this failure on the ground that the foreman of the claimant had knowledge of the accident. The foreman testified that the claimant said to him early that morning: "When I come

App. Div. 247]

Third Department, March, 1922.

to work this morning, I fell in the middle of the street, and I can't work." If the foreman told the literal truth the information which he received advised him of an accident which did not occur in the course of the employment. That would not constitute knowledge of the claim for which the award was granted. The undisputed proof establishes that the claimant received his injury not while coming to work but in the course of it. It is highly improbable, therefore, that the information given by him to the foreman was of an accident otherwise occurring. The claimant seemed to prefer to surrender his claim rather than to answer questions and give testimony which would save it. He failed to testify to the probable fact that he told the foreman of an injury received while crossing the street after his work began. We think the case should be returned to the Industrial Board to give the claimant further opportunity to establish a claim which from every indication would appear to be just and honest.

The award is reversed and the claim emitted to the Industrial Board for further action.

All concur.

Award reversed and matter remitted to the State Industrial Board for further proof, with costs to appellants to abide event.

JULIA CAPITULA, as Administratrix, etc., of SOPHIA CAPITULA, Deceased, Respondent, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

Third Department, March 8, 1922.

Railroads - action for death of plaintiff's intestate killed while crossing on private railroad bridge - evidence question for jury not raised by negative evidence that signal was not heard - intestate was trespasser willful injury not shown use of bridge by other people did not make intestate licensee - error to admit expert testimony as to time in which train should have been stopped where hypothetical question not based on actual conditions instructions - error to refuse to charge that if engineer sounded whistle and applied brakes as soon as he discovered intestate might not get off track in time he was not guilty of willful act - error to refuse to charge that engineer had right to assume in first instance that intestate would get off track.

In an action to recover for the death of plaintiff's intestate, who was struck by one of defendant's engines while she was on a bridge of the defendant, which was not a public crossing, a question of fact as to whether a warning signal was given was not raised by purely negative testimony to the effect that the witnesses did not hear a warning signal given, where there was positive evidence on the part of defendant's witnesses that a warning was given.

At the time of the accident plaintiff's intestate was a trespasser on defendant's bridge and the defendant owed no duty except not to wantonly or willfully injure her. There is no evidence in the record that the defendant's engineer evinced a reckless disregard for the life or limb of the deceased.

Third Department, March, 1922.

[Vol. 200 Though there was some evidence that for a long period of time the railroad bridge in question had been used by the people in the neighborhood thereof as a means of foot passage, this did not constitute plaintiff's intestate a licensee.

It was error for the court to permit expert witnesses to testify as to the time within which the engineer should have stopped the train, as the hypothetical questions put to the witnesses were based upon conditions and equipment not obtaining on defendant's road at the time and place of the accident.

It was error for the court to refuse to charge the jury that "if the jury find that immediately upon discovering that this girl was on the track and not likely to get off in time, the engineer did sound his whistle and apply his brakes, he was not guilty of any wanton, or willful, or reckless act," for the charge was correct as requested and the court had not so charged before in words or effect.

It was error, also, for the court to refuse to charge that "the engineer was not bound to try to stop this train the instant that he saw the deceased upon the bridge, but that he had the right, in broad daylight, if his train was perfectly visible and its approach apparently heard and known, to assume, at least in the first instance, that this girl would get off the track."

APPEAL by the defendant, The New York Central 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 Albany on the 19th day of May, 1921, upon the verdict of a jury for $3,500, and also from an order entered in said clerk's office on the same day denying defendant's motion for a new trial made upon the minutes. Visscher, Whalen, Loucks & Murphy, for the appellant. John H. Gleason, for the respondent.

KILEY, J.:

The record in this case discloses that between seven and eight o'clock on the morning of the 24th day of November, 1920, the defendant was running its train, consisting of an engine and four cars, over its track between the towns of Colonie and Green Island in the county of Albany, N. Y. At the point in question defendant's track crosses the canal on an iron bridge some feet above the water. Plaintiff's intestate, a girl of sixteen years, was crossing this bridge going toward Green Island and was struck by the engine of said train; her body dropped through the bridge into the water of the canal, dead. Upon the trial the plaintiff recovered a verdict of $3,500 and costs. This bridge is not a public crossing; its use is solely for carrying the tracks of defendant upon which its trains cross, and it is the owner thereof. The engineer's attention was called to the fact that this girl was upon the bridge, and he saw her when his engine was about 800 feet west of the entrance to said bridge. He and some other witnesses say he blew the whistle giving the danger signal. The only evidence to the contrary was negative in character, viz., that they did not hear it blow. Plaintiff's negative evidence, as against the defendant's positive evidence, did not present a question of fact for the jury. (Matutinovich v. N. Y. Central R. R. Co., 182 App. Div.

App. Div. 247]

Third Department, March, 1922.

451; Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430.) The engineer further testified, and no evidence was produced to the contrary, that he, at the same time, advanced his emergency brake to service position, and with the same movement and immediately advanced the brake to the "hole" so called and meaning to the utmost position it could be advanced for stopping the train. Defendant's evidence is to the effect that there had been a light snow or heavy frost that morning which rendered the rails slippery. The train was going thirty-five miles an hour when the girl was first seen upon the track; the train was not stopped and the girl was killed. This is not the ordinary negligence case, where a person is killed upon a crossing kept, maintained or allowable for public use. It is not claimed that plaintiff's intestate had any right upon this bridge. She was a trespasser, and as to her the defendant owed no duty except not to wantonly or willfully run her down. (Weitzmann v. Barber Asphalt Co., 190 Ν. Υ. 452.) The record shows that there was no reckless disregard of the life or limb of deceased on the part of the defendant's engineer. She had no right upon the track in question; such use is positively forbidden by statute. (Railroad Law, § 83.) Some evidence was introduced that for a long period of time this railroad right of way had been used by the people in that neighborhood. This did not constitute the plaintiff's intestate a licensee. The Court of Appeals in Keller v. Erie R. R. Co. (183 Ν. Υ. 67), reversing the judgment of the Appellate Division (98 App. Div. 550), held that no length of acquiescence by the railroad in such use could create a right of user by license or by sufferance. Furthermore the violation of section 83 of the Railroad Law is a misdemeanor. (Penal Law, § 29.)* In view of the provisions of the Railroad Law (§ 83, supra) and the decisions of the courts with reference thereto, no distinction is made between trespassers and bare licensees. (Weitzmann v. Barber Asphalt Co., 190 N. Y. 452; followed and emphasized in St. Cartier v. N. Y., N. H. & H. R. R. Co., 179 App. Div. 117.) It appears from the evidence of the engineer that he used his best effort and judgment in what he did under the circumstances existing at the time and place. These include the fact, undisputed, that the sander did not work; that he had but one brake flange or shoe; that the rails were slippery; and he is upheld by plaintiff's experts that, under such circumstances, he could do no more. I cannot see where he can be charged with even a faulty judgment. Acting with promptness and in accordance with his best judgment, doing what he could Third Department, March, 1922. [Vol. 200 to avert the accident, but failing, he should not be chargeable with the death of this girl. (Piehl v. Albany Railway, 19 App. Div. 471; Ogier v. Albany Railway, 88 Hun, 486.) What has been thus far said is suggestive that this judgment should be reversed; but exceptions to the receipt of evidence over defendant's objection, and exceptions to the refusal to charge as requested by defendant, make the suggestion a certainty. The plaintiff called two engineers from other roads as experts. Hypothetical questions were put to these witnesses based upon conditions and equipment not obtaining on this road at the time and place of the accident; consideration does not seem to have been given to the single brake flange, the slippery condition of the rails or the unworkable condition of the sander; over defendant's objection they were allowed to answer that the defendant's engineer ought to have stopped his train several hundred feet short of the place where it did stop. This was error and could not escape influence on the jury. Defendant's counsel requested to charge as follows: "I will ask your Honor to charge that if the jury find that immediately upon discovering that this girl was on the track and not likely to get off in time, the engineer did sound his whistle and apply his brakes, he was not guilty of any wanton, or willful, or reckless act." The court refused to so charge except as he had already charged. No such charge in words or effect appears in the first instance; the refusal was reversible error. Defendant's counsel made the further request as follows: "I will ask your Honor to charge that the engineer was not bound to try to stop this train the instant that he saw the deceased upon the bridge, but that he had the right, in broad daylight, if his train was perfectly visible and its approach apparently heard and known, to assume, at least in the first instance, that this girl would get off the track." The court answered: " I will leave that as a question of fact for the jury in this particular case." Under the holding in Chrystal v. Troy & Boston R. R. Co. (105 Ν. Υ. 164) and O'Brien v. Erie R. R. Co. (210 id. 96) the defendant was entitled to have the charge as requested.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur; COCHRANE, P. J., and HINMAN, J., in result in separate memorandum by HINMAN, J.

HINMAN, J. (concurring in part):

I agree with the conclusion that the case should be reversed and sent back for a new trial.

The testimony of the experts as to the distance within which the train could have been stopped was clearly prejudicial. It

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