was a matter of daily occurrence for the defendant's switch engine or shifter to come up from Ogdensburg, about two miles distant, and bring up empty cars for loading, and take away those that had been loaded.

The plaintiff, Rega, was a young man between 16 and 17 years of age, and was keeping tally of the lumber loaded upon one of the cars upon the south branch of the mill switch in the Skillings Company's yard. There were eight other cars upon that track. As the lumber was put into the car, the man with whom he was working would call out the amount. The plaintiff would record the same, and call back what he had recorded for verification. It appears in evidence that there was a little mist falling upon the morning in question, and the plaintiff had gone under the car, sitting upon the track with his back against the west truck, and while there was doing his work. In the shifting of cars by this shifter, or switch engine, one of the cars struck the west car in this line of eight, one of which was thus being loaded, and moved the same eastward, thereby causing to the plaintiff the injuries for which he was recovered in this action. The claim of the plaintiff is that he ought to have been notified by the railroad company that this car was to be disturbed, and that the failure of the company so to notify him constituted negligence.

It is unnecessary to discuss the question of the defendant's negligence, although it does not appear that the defendant had any knowledge whatever that this plaintiff was in this dangerous position, for the reason that the plaintiff himself was in my judgment as matter of law guilty of contributory negligence. The mere statement of the facts of the case would seem to me conclusive proof of this proposition. There was no occasion whatever for his getting under the car, except to get into a position of greater comfort, and possibly be free from a little mist, through which all the others were working uncomplainingly. That the place was an extremely dangerous one goes without saying; and, moreover, plaintiff had knowledge that for an hour this shifter had been running cars backward and forward upon those switch tracks, and might at any moment come in upon his track. His claim that he did not think it was dangerous, because he thought he would be notified, is wholly unjustifiable. Shortly before this time he had occupied a similar position under a car upon the field track, which had been moved. in a similar way without any notice to him; but, fortunately for him in that case, the trucks upon which he was resting had moved away from him, instead of toward him, and he escaped injury. I can conceive of no case in which the court should hold contributory negligence established as matter of law, if not in the case at bar. I therefore recommend that the judgment and order be reversed, with costs, and judgment absolute ordered for the defendant, dismissing plaintiff's complaint, with costs; and I recommend a finding by this court that the plaintiff was guilty of contributory negligence as matter of law, which contributed to cause his injury.

Judgment and order reversed, with costs, and judgment absolute ordered for defendant, dismissing the plaintiff's complaint, with costs. This court finds that the plaintiff, as matter of law, was guilty of negligence which contributed to his injury. All concur, except WOODWARD, J., who dissents.

PATRICK v. ATLAS KNITTING CO. et al. (No. 245/90.) (Supreme Court, Appellate Division, Third Department. November 11, 1914.) MASTER AND SERVANT (§ 114*)-INJURIES TO SERVANT-NEGLIGENCE-SAFE ACCESS TO AND EGRESS FROM PLANT.

Defendant company owned and operated a plant which was surrounded on the east and west by private property, on the south by a river, and on the north by the tracks and right of way of a railroad company. There were no means of getting to or from the property except by crossing the tracks, over which the defendant had no right of way to any public thoroughfare; nor was there any walk or path leading from a highway to the plant. Fences had been erected on both sides of the railroad property, and the defendant had built a cement walk from its main entrance to the factory, through an opening in its fence, to the railroad property; but no watchman was maintained to warn employés crossing the tracks of the approach of trains. At night, after the lights had been lighted in the mill, plaintiff's intestate, having finished his work, started home, and as he got on the railroad tracks he was killed by a passing train. Held, that defendant knitting company was not only required to furnish its employés a safe place to work, but a safe way to and from its plant, and its failure to do so was negligence.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. §§ 179, 200; Dec. Dig. § 114.*]

Appeal from Trial Term, Schenectady County.

Action by Anthony Patrick, as administrator of Joseph Vilkus, deceased, against the Atlas Knitting Company and another. From a judgment of nonsuit as against the defendant named, plaintiff appeals. Reversed, and new trial granted.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Leary & Fullerton, of Saratoga Springs (James A. Leary, of Saratoga Springs, of counsel), for appellant.

Edgar T. Brackett, of Saratoga Springs (Luther A. Wait, of Hudson Falls, of counsel), for respondent.

HOWARD, J. This is an appeal from a judgment of nonsuit. The action was brought against the Atlas Knitting Company and the New York Central & Hudson River Railroad. The Atlas Knitting Company owned and operated a manufacturing plant at Amsterdam, N. Y. At the time of the accident in question, the company was employing about 198 people. The property of the Atlas Knitting Company was surrounded on the east and west by private property, on the south by the Mohawk river, and on the north by the tracks and right of way of the New York Central Railroad. The Atlas Company had no right of way from any public thoroughfare to its plant. There was no way of access to or egress from the company's property except across the New York Central tracks. Four times a day the 198 employés of the company were obliged to cross these tracks. At the point where the employés cross there was no path of any description; nothing but the ties and rails and roadbed. There had been in previous times some pretense at a path. But, however that may be, the Atlas Company dis

claims that it has any right of way over the tracks of the railroad company, and disclaims any right or duty to maintain any path over the railroad. One of the streets of the city of Amsterdam runs parallel to the New York Central tracks, just north of the tracks. The railroad people maintained a fence along the northerly side of its tracks, and it maintained an opening, with a gate, just opposite the main door of the Atlas Company's plant. The Atlas Company also maintained a fence on the boundary line between its property and the property of the railroad. Opposite the main entrance to its plant there was an opening in this fence. The Atlas Company had constructed, and it maintained, a cement walk from its main entrance north through the opening in its fence to the property of the railroad. All its employés were obliged to cross to and fro over the tracks of the railroad and over this cement walk in going to and from the company's plant. They were invited by the company to travel this route-there was no other route for them to travel. The company maintained no watchman at the point where its employés stepped off the cement walk onto the railroad tracks to warn the employés of the approach of trains. On the night of October 8, 1912, at about a quarter past 6 in the evening, after the lights were lit in the mill, the plaintiff's intestate, having finished his work, started to go home. He left the mill by the main door, approached the railroad track, was hit by a passing train, and was killed.

The nonsuit was granted upon the theory that the Atlas Knitting Company was not guilty of negligence. No other question was considered below; we shall consider none other here. The trial court stated that the man's death was not due to any improper construction of the walk, and the trial judge seemed to assume that unless there was an improper construction of the walk, or unless the walk was improperly maintained, the Atlas Company could not be held liable. In this view of the law, we believe the trial judge to have been in error. The Atlas Company built and maintained its mill in a position where it had no lawful way of access to its plant. It knew that its employés must necessarily travel to and fro across the New York Central tracks, where swift trains were running, and where there was no path, no protection, no gates, no watchman. It recognized that the condition of the path was dangerous, for it had previously protested to the railroad about the condition of the walk. Its employés proceeded across these tracks under conditions of no greater safety than as though they had been crossing of their own accord at any other point of the railroad. The employés of the company were compelled to cross this railroad under these conditions every morning in order to get to their work; and every evening this stream of 198 employés was poured out upon the New York Central tracks without protection or warning of any kind. If the Atlas Company was negligent at all, it was negligent, not because it failed to maintain the path in good condition, but because it had located and was maintaining its plant in a position where its employés must hazard the danger of crossing the railroad without any watchman, gate, or protection of any kind. Having located its factory in a position so that the employés were compelled to cross the

railroad track, a duty was imposed upon the defendant to exercise reasonable care for their safety.

It is the duty of the master to furnish his employés with a safe place to work and with safe access to and egress from its plant. Dorney v. O'Neill, 49 App. Div. 8, 63 N. Y. Supp. 107. It is the settled law that the master must furnish a safe egress from his factory-egress to what? To a known place of danger? Not so; to a place of safety. It will not answer for the master to turn his employés out at twilight upon the tracks of the most used railroad in the United States, where the swiftest trains in the world are constantly passing and repassing. This does not comply with the law. An egress cannot be safe unless it terminates in a place of safety. If a master has been careless or unwise enough to construct his plant in a place where he cannot furnish an egress which terminates in a place of safety, then he has not discharged his duty towards his employés. We do not think it can be said as a matter of law that a master who furnishes a few feet of cement walk from its plant, terminating on the track of a railroad over which many swiftly moving trains are passing, has furnished a safe way to and from his factory. Under the circumstances disclosed here, we believe it to have been the duty of the Atlas Company to have furnished its employés a safe way to and from the public highway. As to whether the way which it did furnish, from the highway to its plant and from its plant back again to the highway, was safe or otherwise, was a question of fact, we believe, which should have been submitted to the jury.

Therefore we conclude that the judgment of nonsuit should be reversed, and a new trial granted. All concur.

MCNAB v. P. & H. MORTON ADVERTISING CO. (No. 6277.) (Supreme Court, Appellate Division, First Department. November 13, 1914.) 1. PRINCIPAL AND AGENT (§ 81*)-COMPENSATION-TIME DUE,

A solicitor for an advertising company, who was to receive commissions upon the amount of advertising contracts procured by him, and who was credited by the company with the commissions when the contracts were accepted, although in two cases the amounts were reduced over his protest when the contract price was not collected by the company, is entitled, in the absence of an express agreement as to the time when the commissions become payable, to receive them at the time of the acceptance of the contract, and the company assumed the risk of the performance of the contract which it accepted.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 194214, 219, 223; Dec. Dig. § 81.*]

2. PRINCIPAL AND AGENT (§ 89*)-ACTIONS FOR COMPENSATION-EVIDENCEPROCURING CAUSE.

In an action by the assignee of commissions earned by an advertising solicitor, evidence held insufficient to show that the solicitor was the procuring cause of a contract obtained from one whom he had interviewed, but who had signed a contract presented by another solicitor.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§8 216, 229-239; Dec. Dig. § 89.**]

3. PRINCIPAL AND AGENT (§ 81*) COMPENSATION

CONTRACT PROCURED

THROUGH ANOTHER. Where a solicitor for an advertising company had no contract for an exclusive agency, the fact that he had attempted to procure a certain contract, and failed to do so, does not preclude the company from obtaining the contract from another solicitor, without becoming liable to the first for a commission thereon.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 191214, 219, 223; Dec. Dig. § 81.*]

4. PRINCIPAL AND AGENT (§ 89*)-ACTIONS FOR COMPENSATION-EVIDENCE. In an action by the assignee of commissions earned by an advertising solicitor, a verdict finding that the advertising company accepted a certain contract procured by the solicitor held to be against the weight of the evidence.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 216, 229-239; Dec. Dig. § 89.*]

5. INTEREST (§ 46*)—DELAY IN PAYMENT-Liquidated Demand.

Where the amount due an advertising solicitor on commissions earned by him was liquidated, he is entitled to interest thereon from the date when he made demand.

[Ed. Note. For other cases, see Interest, Cent. Dig. §§ 95-105; Dec. Dig. § 46.*]

Hotchkiss, J., dissenting in part.

Appeal from Special Term, New York County.

Action by William S. McNab against the P. & H. Morton Advertising Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulates to reduce the judgment. Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.

Arnold L. Davis, of New York City (N. Raymond Heater, of New York City, on the brief), for appellant.

Julian C. Harrison, of New York City (David Paine, of New York City, on the brief), for respondent.

LAUGHLIN, J. This is an action on an assigned claim of one Lawder to recover commission for services rendered in procuring advertising for field signboards and other billboards and walls and barns owned or controlled by the defendant. The plaintiff claimed commissions aggregating $4,438.65, on account of which he admitted having received $1,861.20, leaving a balance of $2,577.45, for which, with interest and costs, he demanded judgment. At the commencement of the trial counsel for the defendant admitted that plaintiff was entitled to commissions on 15 of the contracts as alleged, and to part of the commissions on 10 other contracts, but denied his right to any commissions on 5 of the contracts. The commissions which the defendant thus admitted had been earned when the action was commenced aggregated $1,189.55. The claim of the defendant, therefore, was that all commissions earned had been paid, and that the defendant had advanced the balance of the amount, which the plaintiff's assignor admitted having received, on account of commissions which it was expected would become due and owing in the future.

With respect to the items in dispute the claims of the defendant were: (1) That some of the commissions had not become due and

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes