HATCH, J.:

This is an action to recover damages based on the negligence of the defendant. The evidence established that the plaintiff was in the employ of the Brooklyn Asphalt Company, which company was engaged in repairing with asphalt Ninth avenue, on which the defendant maintained its road, from Ninth to Fifteenth street. The particular act which plaintiff was performing at the time of the injury was carrying hot asphalt upon a shovel from the side of the track and placing it between the rails of the track. During the progress of the work the use of the tracks for the running of cars was not interrupted, although the street was torn up. The plaintiff had a shovelful of asphalt ready for deposit, when a car came along and prevented its deposit. He waited until the car had passed and hen stepped between the tracks to deposit the asphalt when he was struck by a freight car, which followed the passenger car, before he could remove himself from the track. The proof also tended to establish that the car which struck the plaintiff gave no signal of its approach.

The plaintiff sustained a fracture of the ankle. No proof was offered by the defendant. Under ordinary circumstances it is quite probable that, upon the evidence, the plaintiff would have been held to be guilty of contributory negligence, as matter of law, had he been a traveler upon the highway, but we do not think such result should follow under the peculiar circumstances of this case. The defendant was chargeable with notice of the fact, both by its contract to repair the street and its actual condition, that workmen were upon the track at this point, and were required to be in order that the work might proceed. It is evident that the operation of the cars created a condition in which the plaintiff and those engaged upon the improvement were required to work in the intervals between the moving cars upon the track, and under such circumstances would remain thereon many times until the car came very close to them. The condition was one under which the person operating the car was required to exercise extreme care for the protection of the workmen, and it is evident that abundance of warning was required. The car was also required to be under such control as that it could be stopped practically upon the instant. The proof authorized a finding that no warning of any description was given of the approach of this car, and consequently the defendant's negligence was established. Whether plaintiff should have observed the car or not became a question of fact for the jury. One car had passed, and no warning of the immediate approach of the freight car was given. As plaintiff stepped upon the track to deposit the asphalt he was almost immediately struck.

As the condition was one under which he had the right to assume that warning would be given, and as the prosecution of the work required that the asphalt should be deposited while hot, it is quite evident that the operation of the car was to be had with regard to the plaintiff's being between the rails of the track; and we think that plaintiff might rely upon the presumption that the operator of the car would stop the same when it reached the point where he was upon the track. The condition required the work to progress during operation, and as plaintiff's presence upon the track must be presumed to have been known to the defendant, he had the right to perform his work in contemplation of such knowledge, and to assume that if a car reached the point where he was upon the track it would come to a stop. Under such circumstances, whether the plaintiff ought to have immediately looked after the passage of the first car, or whether he was justified in relying upon the assumption that the defendant would discharge its duty to give warning of the approach of the car and stop the same before working an injury, was, we think, a question of fact for the jury.

The court submitted all questions fully and fairly. The verdict was extremely moderate, and we think the judgment should be affirmed.

Judgment and order unanimously affirmed.