Ellen Sullivan, as Administratrix, etc., of Daniel C. Sullivan, Deceased, Appellant, v. Third Avenue Railroad Company, Respondent

Ellen Sullivan, as Administratrix, etc., of Daniel C. Sullivan, Deceased, Appellant, v. Third Avenue Railroad Company, Respondent. Negligence■—an employee, engaged in laying the tracks of a surface road, crushed between a horse car and, the girder of an elevated railroad. An employee, engaged in constructing a temporary street railroad track, although upon the approach upon such track of a horse car belonging to his employer he ■ might have crossed over to its westerly side and avoided all danger, voluntarily remained on its east side, where an iron girder about thirty feet long (not placed there by his employer), which had been tied to two iron pillars forming part of an elevated railroad structure operated upon the same avenue, was behind" him and cut off his retreat to the east, and, while -standing there, was crushed by the horse car which passed along the track and jammed him against the girder. Held, -that the horse railroad company was not shown to have .been guilty of ■ negligence, or to have failed in the performance of any duty which it owed its ■ employee in the premises. : . ..... Appeal by the plaintiff, Ellen Sullivan, .as administratrix, etc., of - Daniel C. Sullivan,.-deceased, from a judgment of the Supreme. Court in. favor of the defendant, entered in the office of the clerk . of the county of New York on the 25tll day of May, 18:96, upon , the dismissal of her complaint by direction of the court after-a "trial ' at. the New York Trial-Term. Horace H. Doherty, for the appellant. Albert H. Walker and Henry L. Scheuerman, for the respondent. [MAJORITY — Parker, J.:] Parker, J.: On the 6th day of April, 1892, the,defendant was constructing its cable road on Third- aveniie, and. for that purpose was obliged, temporarily, to maintain a track on the westerly side of the west ■ down-town track. At that date so much of the temporary track as is involved in this controversy branched from the regular track, between Eighth and Seventh streets, and "continued down the. avenue below-the point where the accident" occurred, which resulted.in the loss of life of plaintiff’s intestate: He was crushed between a moving car on the. temporary track and an iron girdel about thirty feet long which-.was tied to two iron pillars which .formed á part of the elevated railroad structure on Third av.entie. The -distance between this ■girder, and the nearest "rail-of the temporary track was about three feet. -For about twenty minutes before the accident happened .-plaintiff’s, intestate, Daniel 0. Sullivan, and between thirty and forty other men, were at wprlt in and about the temporary track in the immediate -vicinity of this girder. . The object.of their labor was to make it possible to use the temporary track for the movement of defendant’s cars down town. -Some of the men were at Work- lay.ing timber,, others, were, paving, and still others working-with pick and" shovel.. While they were thus at work a south-bound car-passed over the track; all of the: men who-were-at work in' front of this girder passed over the westerly side of the track, except the intestate Sullivan, who stepped back against the girder, but the car projected so far over the rail that in passing him he was crushed between the girder and' the car, the injury causing his death. The learned trial justice was unable to discover in the evidence any basis for a finding that this defendant had neglected to perform any duty which it owed to the plaintiff, and, after an attentive examination of it, we have reached the same conclusion. A master is not bound to furnish an absolutely safe place for his servants to work in; indeed, it is impossible always to do so in works of new construction, but he is required to use reasonable care and prudence in providing such a place. Wherever this defendant omitted its duty it was for the plaintiff to point out, but she seems to us not to have succeeded. Clearly it was not wrongful for the defendant to construct temporary tracks nor to construct them where it did, even if there was not sufficient space for a man to stand between the car body and the pillars, or the car body and the girder. It was not a part of the scheme of construction that a man should stand for the purposes of work between the girder and the car. The others did not do it; they got out of the way while the car was passing. Plaintiff’s intestate had the same opportunity, but he did not avail himself of it, why,, of course, we cannot say, but it is quite apparent that, according to his calculation, there was room for him to stand between the girder and the car while the car was passing, and he preferred to do it rather than to take the two or three steps necessary to get on the westerly side of the track, as did his associates. He had plenty of time to get out of .the way, for the only witness who tesfied about the speed of the car said: “ There was not anything to prevent him from going south of that girder; the car was coming along, walking on — coming slow.” It was, therefore, not the. fault of the driver, for he drove slowly, his horses walking. It is suggested that the fastening of the girder to the pillars created a pocket, into which the plaintiff’s intestate was allured, only to become a victim to a lack of foresight on the part of the defendant. Assuming that the proposition asserted would be worthy of serious consideration if the defendant were responsible for the construction of the pocket, such a consideration is out of place on this review, because it does not appear that the defendant fastened the girder to the iron pillars. .Hot only are we unable to find any evidence of neglect on the part of the defendant to perform any duty which it .owed to plaintiff’s intestate in the premises, but it is clear that the plaintiff' failed to meet the burden resting upon Her'of showing that. her intestate was free from contributory'negligence.. . So far as the evidence discloses he was at work with others between him and the. projecting car, which was moving, slowly, the horses walking; his associates, crossed over to the westerly side of the track, with the exception of those south of. the girder, and they stepped out on either side of the track. Sullivan might have done so. lie had the same opportunity as did the others,, but he did not, and for'.the reason, doubtless, that he thought there was sufficient room for'the car to pass.-. In that ■ he. was- mistaken. It- was his mistake — his carelessness — his neglect of Ordinary caution, which made the accident possible. . The judgment should be affirmed, With costs. Van Brunt, P. J.,. Rumset,- O’Brien and Ingrauam, JJ., ; concurred. . Judgment affirmed, with costs.