Opinion
May 4, 1910.
Edgar T. Brackett and James A. Leary, for the appellant.
Lewis E. Carr, for the respondent.
The plaintiff's intestate, while in the employ of the defendant as a track repairer, and while replacing a broken bolt in a plate holding the rails together on the north-bound track, was killed by a train from the south running over him. At the same time a heavy freight train was passing in the opposite direction on the southbound track, the road at the point passing on a curve through a cut. He was at work with one Reynolds, the section boss in charge of the gang. It was the duty of Reynolds to look out for the gang, and to warn them of the approach of trains. At the time of the accident Reynolds was about 200 feet south of the intestate, and from a semaphore in sight saw that the train was approaching from the south, and he and his son stepped off from the track and holloed and motioned to the intestate, but he did not see or hear them as he was intent upon his work, and the train passing him made a great noise. Reynolds had been expecting the train for four minutes before it ran over the intestate.
It being the duty of Reynolds to look out for the men and notify them when a train was coming, the intestate had a certain right to expect such notice if a train was coming in the opposite direction. His contributory negligence, and the question of whether Reynolds was negligent in attempting no other notice except by holloing and waving his hands were fair questions for the jury. If he had time to give other notice, and reasonably believed that the holloing and motions of his arms would not give sufficient notice, it is for the jury to determine whether he exercised the care of an ordinarily prudent person under the circumstances.
This action was brought by Charles La Belle, as administrator, etc., he having been appointed by the surrogate of Saratoga county, where the intestate met his death. The intestate was an unnaturalized Italian, having no relatives in this country, and it is conceded that, by virtue of the treaty between Italy and the United States, the consul-general of that country here has the prior right to administer upon his estate, and the dismissal of the complaint is sought to be sustained upon the ground that the plaintiff had not capacity to sue, and was not the legal administrator. The letters of administration are apparently regular, and under section 2591 of the Code of Civil Procedure their regularity cannot be questioned in this action. After the trial the letters were revoked, and the consul-general appointed, and is substituted in the action without prejudice to any objection which the defendant had to the regularity of the action at the time of trial.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except HOUGHTON, J., dissenting.
Judgment reversed and new trial granted, with costs to appellant to abide event.