GAYNOR, J.:
The complaint contained four grounds of negligence, (1) that the subway lights were out, (2) that the front lights of the train were out, (3) that no warning of the approach of the train was given by blowing the whistle or otherwise, and (4) that the train was running at an excessive rate of speed and not under control. During the course of the trial the learned counsel for the plaintiff withdrew the first and second, and the learned trial judge withdrew the fourth in his charge; so that only the question of warning was left. It was insisted for the plaintiff that the defendant owed the duty of giving such warning, for the reason that there was a curve at or immediately north of the place of the accident, which prevented the deceased from seeing the train approach until it got within fifty feet of him. The defendant insisted from first to last, as its main point, that it owed the deceased no duty of due care, for the reason that he was a licensee; whereas he was not a licensee, but was there by the express invitation and agreement of the defendant with his employer, engaged in doing work for the defendant on its tracks. It was also insisted in the same way that the defendant could not be under any duty to blow the whistle with which the car was equipped. That there is no such statute duty is no foundation for the claim that there is no such duty. The confusion on the subject seems to have arisen when the statute requiring the giving of signals by bell and whistle at railroad crossings was repealed. It has ever since been insisted that railroad companies have no duty to give such warning signals at all. They no longer have such a statute duty, it is true, but in a given case they may have a common law duty to give such a warning, and in the same way it was at least a question for the jury whether this latter duty did not apply to this case. It was for the jury to say whether the defendant, knowing that the deceased and his companions were strung along its track at work, should not at curves give a signal of the approach of trains, or exercise some similar care.
The judgment should be affirmed.
GAYNOR, J.:
Judgment and order unanimously affirmed, with costs.