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FOURTH DEPARTMENT, JULY TERM, 1903.

(Vol. 86. that the res could be followed. Welker is still indebted to the plaintiff and the defendant is apparently indebted to Welker, but he owes the plaintiff nothing and the recovery against him cannot be sustained.”

The case in that aspect of it still remains unchanged. If no canse of action then existed against the defendant for the money he received from Welker none exists now. If the demand was then valid against Welker it is equally so now.

The respondent seeks to uphold the decision on the ground that the defendant when he purchased the claim became a party to the proceeding and was within the jurisdiction of the court, so that the payment of the money to him may be assailed by the court, relying upon Matter of Sheldon (173 N. Y. 287). tion was not discussed by the court in its opinion, it was before the court in its full measure. We cannot assume the court overlooked it, but, on the contrary, must take it for granted that it was deemed unimportant. Whatever proposition in the case was fairly before the Court of Appeals we must assume was considered and passed upon adversely to the plaintiff.

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

All concurred, except McLENNAN, J., dissenting.

Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.

While this ques

ALICE G. FIELD, as Administratrix, etc., of WILLIAM G. FIELD,

Deceased, Appellant, v. THE NEW YORK CENTRAL AND IIUDSON

River RAILROAD COMPANY, Respondent. Negligence assumption by an employee of the risk involved in a rule that within

the yard limits a flagman need not be sent back to protect the train from rear end

collisions. In an action brought to recover damages resulting from the death of the plain.

tiff's intestate, it appeared that the intestate was a freight conductor in the employ of the defendant railroad company, and that before daylight on the morning of March 6, 1900, he stopped his train, which was traveling east on

App. Div.]

Fourtu DEPARTMENT, JULY TERM, 1903.

track No. 4, on & curve within the defendant's yards at West Albany; that while the train was stationary and the intestate was sitting in the caboose thereof, a freight train following on the same track crashed into the caboose

and killed the intestate. The defendant had a rule which imposed upon those in charge of a train running

within the yard limits of West Albany the duty to be on guard for a train ahead, instead of requiring each train crew to protect its train in the rear by sending back a flagman. The negligence charged against the defendant was that this rule was ineffective and improper, and the evidence was sufficient to

warrant a finding that this was the case. It appeared, however, that the rule in question had been in force for many years and that no injury bad resulted therefrom; that the intestate had been in the railroad business for twenty-six years, during eight of which he had been employed on the division on which the accident occurred; that he was entirely familiar with the rule in question, and had repeatedly told his flagman that it was unnecessary to flag inside the West Albany yard limits for approaching trains. Held, that the complaint was properly dismissed; That the intestate must be deemed to have been cognizant of, and to have assumed

the risks incident to the operation of the rule in question; That if an employee, with entire appreciation of a given dangerous situation,

chooses to continue in the employment, he cuts off any recovery for injuries suffered because of that particular situation, whether or not the employer has been remiss in his duty.

APPEAL by the plaintiff, Alice G. Field, as administratrix, etc., of William G. Field, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 7th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term.

William S. Jenney, for the appellant.

Frank Hiscock, for the respondent.

SPRING, J.:

The plaintiff's intestate, William G. Field, was a freight conductor in the employ of the defendant. He had been in its service on the Mohawk division for upwards of eight years. Before daylight on the morning of March 6, 1900, he stopped his train, which was going east on track No. 4, on a curve within the yards of the defendant at West Albany. He was sitting in the cupola of the caboose of his train when a freight train following on the same track

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. crashed into the caboose, causing his death, and his adıninistratrix has sued to recover damages.

The particular negligence with which the defendant is charged is the keeping in force of an improper or inefficient rule which reads as follows: “Yard-limnit signs have been erected at Black Rock Cut, east of West Albany, and at the Old Road Curve, west of West Albany. The Block on track No. 4 ends at these signs. Trains occupying track No. 4 inside of yard-limit need not be protected by flagman." The effect of this rule, if observed, is to place the burden on those in charge of a train running within the yard limits mentioned to be on guard for a train ahead instead of requiring each crew to protect its train in the rear from approaching trains. It related to the method of operation and had long been in vogne and without detriment to its employees. The claim of the plaintiff is that if the rule applicable to other parts of the road and generally in railroading had been in practice, requiring each conductor to protect his own train, the plaintiff's intestate would have heeded it and the collision would not have occurred.

The proof shows that many railroad companies maintain the rule for the protection of the train by its own crew against one following in yard limits as well as elsewhere, and the proof was sufficient to require the submission to the jury of the effectiveness and propriety of the rule quoted except for a principle which we deem controlling

Field had been in the railroad business for twenty-six years and eight on this division. He was entirely familiar with this rule and had repeatedly told his flagman it was unnecessary to flag inside this yard limit on this track for an approaching train. He, therefore, assumed the risks of his employment and that means those with which he was acquainted. We realize that the principle is a general one that before an employee can be held to have assumed the risks connected with leis service the employer must have fully performed the duties enjoined upon him. (Benzing v. Steinway & Sons, 101 N. Y. 552; Eastland v. Clarke, 165 id. 420, 427.)

This principle does not obtain where the employee is cognizant of the danger and continues his service in the face of that full knowledge. (Drake v. Auburn City R. Co., 173 N. Y. 466, 472; Dowd v. N. Y., O. & W. Ry. Co., 170 id. 459; Maltbie v. Belden,

app. Div.] FOURTH DEPARTMENT, JULY TERM, 1903. 167 id. 307, 312; O'Maley v. South Boston Gas Light Co., 158 Mass. 135.)

In the Drake Case (supra) the plaintiff's intestate was conductor on a trolley road leading out of the city of Auburn. While standing on the running board of the moving car, in the performance of his duties, he was hit by a leaning tree, one of a row in the street, and killed. He had been over the road more than two hundred times as motorman and conductor, and it was held as matter of law that he was familiar with the situation and assumed the danger of the close proximity of the trees as one of the obvious risks of liis employment. In commenting upon the principle the court say that “if, in his opinion, there was peril in operating an open car, it was his duty to have retired from the employment; as he failed to do this, it must be held that he assuined whatever risk there was in the situation."

It is not necessary to refine over much for the purpose of ascertaining whether this principle rests on implied contract or a distinct act of waiver, or on the two combined. The gist of the principle is that where the employee, fully appreciating the dangerous condition of an appliance or of certain machinery, or a inethod of doing the work in all its aspects, elects to continue in the employment and take his chances of receiving injury from the known dangerous condition, he is estopped from mulcting the employer in damages for injuries inflicted because of such defective appliance or method. He willingly continues in the employinent, with the dangers in full measure before him, and the rule that the master must first perform his duty before the doctrine of the assumption of risks arises is not applicable. It is unimportant whether the employer has performed his duty or been remiss ; if the employee, with entire appreciation of a given dangerous situation, chooses to continue in the einployment, lie cuts off any recovery for injuries suffered by that particular situation. He makes his own election; it is by his own volition that he remains in the service, and he may not be heard to complain. The master and servant are alike in the wrong, and, like tort feasors, neither inay charge up his injury to his co-wrongdoer. It inay be that in a flagrantly dangerous case public policy will not permit a railroad coinpany to assert the doctrine of assumption of risks to relieve itself from liability for injuries to an

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

employee growing out of its adoption of a bad rule or practice even though the workman was fully aware of it. That is not this case. The rule in question had been in practice for many years and no injury had resulted from its operation. Other companies adopted other methods, but it does not follow that the use of the one now assailed was fraught with danger. It had stood the test of long operation.

If there was anything especially dangerous on the morning of the catastrophe by reason of the weather or the slipperiness of the rails the plaintiff's intestate knew of it. The rule referred to was not imperative that he stall his train and wait in his dangerous situation realizing that an approaching train was liable to come in contact with him. He was by the rule relieved of the necessity of sending back a flagman, not forbidden from so doing. If he deemed that course essential for the protection of his train he was at liberty to pursue it, and it was always incumbent upon him to exercise caution and vigilance to prevent accidents.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

JAMES A. RICHMOND and ANNE RICHMOND, as Executors of ALVIN

RICHMOND, Deceased, Respondents, v. THE FREEMANS NATIONAL Bank, Appellant, Impleaded with CHARLES KING, as Executor of SETH M. RICHMOND, Deceased, and Others.

Proceedings for the sale of a decedent's real property for the payment of debts Q

mortgage given by a devisee pending such proceedings to which he, but not the mort. gagee, is a party is cut off by a sale thereunder machinery placed in a mill property by a devisee thereof to replace other machinery therein held to be realty.

Seth M. Richmond, who, at the time of his death, conducted a knitting mill

under the name of the Saxony Knitting Mills Company, left a will, by which he devised the mill proerty and all the goods, tools, applianc's and machinery connected there with to Charles King, impressed, bowever, with the payment of the debts and obligations contracted by the said Saxony Knitting Mills

Company King accepted the devise and managed the mill property as his own for over

three years after the death of Richmond. He completed an addition to the

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