Bruen v. Uhlmann ( 1899 )

Per Curiam :

As the decision of this court

practically determinas this litigation, we have carefully considered the answer made by the learned counsel for the appellant to the position taken by the court in the opinion hitherto delivered by us (30 App. Div. 453). Without discussing again the details of the case, it is. sufficient to say. that we-adhere to our ruling,, that the failure of the deceased and liis associate to. place the warning flags upon the track while they weré.at work was per se contributory negligence which precludes a recovery. Had the flags been set, the engineer of the engine which ran the deceased down should, and if he had attended to his duty would, have been apprised that men were at work on the track, and with this information could have so managed his engine as to have, avoided causing injury apd to have given -the workmen an opportunity to escape danger. On this question, we see no room for such difference of judgment as would have justified submitting it to the jury. Nor do we see any theory on which the second question in the case, the negligence of the defendant, could have been submitted. The sole claim of the appellant" is that the receiver had not established proper rules for tlie protection of the workmen. We have already said that the direction for posting flags was sufficient, and that the neglect to use the flags was contributory negligence.. Be this as it may, we -do not see what addi-, tional- rule the receiver could have enacted-The only fault suggested by the learnéá. counsel is in permitting the engine which, caused the injury tolollow so closely a regular train., The defendant was operating a-street elevated railroad. On such, á road trains.pass with great frequency; offceñíimésdelays occur, either from the numbér of passengers seeking to enter or alight, or other causes. When such blocks happen it necessarily results that following trains close in. upon the leading one and that until the regular order is.restored one train» must follow another in quick succession. It would be= entirely unreasonable and impracticable to-provide that on such a railroad no train dr engine sh» uld follow another except at a-definite interval of time. Ón both." issues, the freedom of the deceased from contributory negligence and the negligence of the-defendant, we think the plaintiff failed to-make out a cáse. All concurred.