Adams, J.:
It is a fact of which courts will take notice that switches are not only necessary appurtenances to all steam railroads, but that their general use has a tendency to increase quite materially the risk which attends the operation of such roads. It was probably in recognition of this fact that the defendant made some attempt to' guard against the contingency which was liable at any time to occur •at this particular switch by attaching thereto certain signals, the import of which was doubtless well understood by all its employee's, ■and if in making this provision it exercised a reasonable degree of-care for the safety ,of its employees, it did all that could be legally •required of it. But.can it be said, as a matter of law, that this was ■done ? It is a conceded fact in the case that this switch was so located with' reference to the' water tank some fifteen or twenty feet distant therefrom as to be of little or no practical benefit as a ■signal of warning to the defendant’s employees in charge of a train approaching it upon the south-bound track, for the reason that it could not be seen for a distance of more than sixty feet, and it was fairly demonsti’ated by this very catastrophe that a train running at the rate of thirty-five or forty miles an hour could not be stopped within that distance, even by the use of what is known as the u emergency brake.”
The evidence also tends to show that no necessity existed for. thus [299]*299locating this particular switch, but that, on the contrary, it might have been so placed, as is the custom upon at least one other road, that its signals could have been observed at a much greater distance without impairing, the use for which it was designed ; and in view of these circumstances we think it was for the jury to say whether the defendant had fulfilled the legal obligation which rested upon it to make use of all reasonable care to provide for its servants a safe place in which to render the service required of them, as well as proper and safe appliances'with which to perform that service. Having reached this conclusion it becomes important to determine whether the defendant’s omission of duty, if there was'any, can be said to have been the proximate canse of the disastrous consequences which followed.
That the misplacement of the switch by some person for whose criminal conduct the defendant, so far as appears, is in nowise responsible, was ,the moving or proximate cause of the death of the plaintiffs’ intestate there can be no doubt; but it sometimes happens that several causes concur to produce certain results, and in such case any one of them may be termed “ proximate,” provided it appears to have been an efficient cause. (Ring v. City of Cohoes, 77 N. Y. 83; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657.)
In this case, as has been suggested, the train in’ question was, by' reason of the misplaced switch, certain to come into contact with the freight cars which stood upon the siding, if the rate of speed at which it approached was maintained ; but, on the other hand, it is by no means' certain that the accident could not have been avoided, notwithstanding the condition of the switch, if its location had been different. Indeed, a nonsuit having been granted, we think it may properly be assumed, for the purposes of this review, that if the switch had not been pretty effectually hidden from view by the water tank the plaintiffs’' intestate would have seen the danger signal attached thereto at a distance of at least 600 or 800 feet, which would have afforded him ample opportunity to stop his train before it left the main track; and if this be so, then the jury, upon the evidence now before us, would have been justified in finding that the location of the switch, in such close proximity to the water tank, was an efficient and proximate cause of the accident which resulted in the death of the plaintiffs’intestate.
[300]*300We come, therefore, to the. consideration of -the ■ remaining question in the case, which is, whether the risk of death or injury by reason of the alleged improper location of. this switch was one which was assumed by the plaintiffs’ intestate when he entered the defendant’s service. ■ It is an undoubted rule that an employee, who contracts for the performance of hazardous duties, assumes such unavoidable risks and perils as are incident to the duties which he is called upon to perform, provided such risks and perils are apparent. (Gibson v. Erie Ry. Co., 63 N. Y. 449; Kennedy v. Manhattan Ry. Co., 145 id. 288; Evans v. Lake Shore & M. S. R. Co., 12 Hun, 289.)
But this rule has no application where the master has not fulfilled the obligation which rests upon him'to exercise a reasonable degree of care in furnishing his servants a safe place in which, and suitable appliances and machinery with which, to perform the service required of them. (Ellis v. New York, L. E. & W. R. Co., 95 N. Y. 546; McGovern v. Central Vermont R. Co., 123 id. 280; Bennett v. Long Island R. R. Co., 21 App. Div. 25.)
It would seem to follow, therefore, that if, in this case, the jury might find that the switch in question was improperly located, or,. in other words, that the defendant, in so locating the same as to render the danger signal thereon inefficient for the purposes for which it was intended, was guilty of an omission of duty which' it owed to the deceased in common with its other servants engaged in the. performance of like duties, it cannot be said, as a matter of law, that the risk thereby involved was- one which was assumed by the deceased.
It is urged, however, that the plaintiffs’ intestate knew, or was bound to know, of the dangerous location of the switch; and that, consequently, it may be asserted that if, with this knowledge, he ,elected to remain in the defendant’s employ he thereby assumed this additional and unnecessary risk of his employment.
Undeniably it does appear that the deceased had been in the defendant’s service a number of years, during which time he had frequently had occasion to pass this switch, and, consequently, it may doubtless be assumed that he was aware of its location, and to some extent, at least, of the incidental danger which was liable to result' therefrom. It likewise appears that one of the defendant’s rules required engineers to approach switches with great care, having tlieir [301]*301trains, if .possible, under such control as to be able to stop before running off in case a switch happened to be improperly adjusted^ ■and that presumably the deceased was aware of the existence of this rule. But, with all these elements in the case, we still tliinlc it cannot be said, as a matter of law, either that the risk was an assumed one or that the deceased was guilty of .'contributory negligence.
It is not difficult to conceive of instances where, if a servant accepts or continues in service with knowledge of the character and position of structures from which he is liable, to receive an injury, he cannot with any propriety hold the. master liable, and of this «lass of cases that of Gibson v. Erie Railway Co. (supra) is a type; in that case the roof of a depot building projected so near the defendant’s track that a conductor, in attempting to climb over the top of a car while his train was underway, was strucK and killed.
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Adams, J.:
It is a fact of which courts will take notice that switches are not only necessary appurtenances to all steam railroads, but that their general use has a tendency to increase quite materially the risk which attends the operation of such roads. It was probably in recognition of this fact that the defendant made some attempt to' guard against the contingency which was liable at any time to occur •at this particular switch by attaching thereto certain signals, the import of which was doubtless well understood by all its employee's, ■and if in making this provision it exercised a reasonable degree of-care for the safety ,of its employees, it did all that could be legally •required of it. But.can it be said, as a matter of law, that this was ■done ? It is a conceded fact in the case that this switch was so located with' reference to the' water tank some fifteen or twenty feet distant therefrom as to be of little or no practical benefit as a ■signal of warning to the defendant’s employees in charge of a train approaching it upon the south-bound track, for the reason that it could not be seen for a distance of more than sixty feet, and it was fairly demonsti’ated by this very catastrophe that a train running at the rate of thirty-five or forty miles an hour could not be stopped within that distance, even by the use of what is known as the u emergency brake.”
The evidence also tends to show that no necessity existed for. thus [299]*299locating this particular switch, but that, on the contrary, it might have been so placed, as is the custom upon at least one other road, that its signals could have been observed at a much greater distance without impairing, the use for which it was designed ; and in view of these circumstances we think it was for the jury to say whether the defendant had fulfilled the legal obligation which rested upon it to make use of all reasonable care to provide for its servants a safe place in which to render the service required of them, as well as proper and safe appliances'with which to perform that service. Having reached this conclusion it becomes important to determine whether the defendant’s omission of duty, if there was'any, can be said to have been the proximate canse of the disastrous consequences which followed.
That the misplacement of the switch by some person for whose criminal conduct the defendant, so far as appears, is in nowise responsible, was ,the moving or proximate cause of the death of the plaintiffs’ intestate there can be no doubt; but it sometimes happens that several causes concur to produce certain results, and in such case any one of them may be termed “ proximate,” provided it appears to have been an efficient cause. (Ring v. City of Cohoes, 77 N. Y. 83; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657.)
In this case, as has been suggested, the train in’ question was, by' reason of the misplaced switch, certain to come into contact with the freight cars which stood upon the siding, if the rate of speed at which it approached was maintained ; but, on the other hand, it is by no means' certain that the accident could not have been avoided, notwithstanding the condition of the switch, if its location had been different. Indeed, a nonsuit having been granted, we think it may properly be assumed, for the purposes of this review, that if the switch had not been pretty effectually hidden from view by the water tank the plaintiffs’' intestate would have seen the danger signal attached thereto at a distance of at least 600 or 800 feet, which would have afforded him ample opportunity to stop his train before it left the main track; and if this be so, then the jury, upon the evidence now before us, would have been justified in finding that the location of the switch, in such close proximity to the water tank, was an efficient and proximate cause of the accident which resulted in the death of the plaintiffs’intestate.
[300]*300We come, therefore, to the. consideration of -the ■ remaining question in the case, which is, whether the risk of death or injury by reason of the alleged improper location of. this switch was one which was assumed by the plaintiffs’ intestate when he entered the defendant’s service. ■ It is an undoubted rule that an employee, who contracts for the performance of hazardous duties, assumes such unavoidable risks and perils as are incident to the duties which he is called upon to perform, provided such risks and perils are apparent. (Gibson v. Erie Ry. Co., 63 N. Y. 449; Kennedy v. Manhattan Ry. Co., 145 id. 288; Evans v. Lake Shore & M. S. R. Co., 12 Hun, 289.)
But this rule has no application where the master has not fulfilled the obligation which rests upon him'to exercise a reasonable degree of care in furnishing his servants a safe place in which, and suitable appliances and machinery with which, to perform the service required of them. (Ellis v. New York, L. E. & W. R. Co., 95 N. Y. 546; McGovern v. Central Vermont R. Co., 123 id. 280; Bennett v. Long Island R. R. Co., 21 App. Div. 25.)
It would seem to follow, therefore, that if, in this case, the jury might find that the switch in question was improperly located, or,. in other words, that the defendant, in so locating the same as to render the danger signal thereon inefficient for the purposes for which it was intended, was guilty of an omission of duty which' it owed to the deceased in common with its other servants engaged in the. performance of like duties, it cannot be said, as a matter of law, that the risk thereby involved was- one which was assumed by the deceased.
It is urged, however, that the plaintiffs’ intestate knew, or was bound to know, of the dangerous location of the switch; and that, consequently, it may be asserted that if, with this knowledge, he ,elected to remain in the defendant’s employ he thereby assumed this additional and unnecessary risk of his employment.
Undeniably it does appear that the deceased had been in the defendant’s service a number of years, during which time he had frequently had occasion to pass this switch, and, consequently, it may doubtless be assumed that he was aware of its location, and to some extent, at least, of the incidental danger which was liable to result' therefrom. It likewise appears that one of the defendant’s rules required engineers to approach switches with great care, having tlieir [301]*301trains, if .possible, under such control as to be able to stop before running off in case a switch happened to be improperly adjusted^ ■and that presumably the deceased was aware of the existence of this rule. But, with all these elements in the case, we still tliinlc it cannot be said, as a matter of law, either that the risk was an assumed one or that the deceased was guilty of .'contributory negligence.
It is not difficult to conceive of instances where, if a servant accepts or continues in service with knowledge of the character and position of structures from which he is liable, to receive an injury, he cannot with any propriety hold the. master liable, and of this «lass of cases that of Gibson v. Erie Railway Co. (supra) is a type; in that case the roof of a depot building projected so near the defendant’s track that a conductor, in attempting to climb over the top of a car while his train was underway, was strucK and killed. But it is to be observed that in this instance the peculiar character of the dangerous structure was perfectly patent; that the injured party was familiar with it, and that when struck he was not engaged in any duty which distracted his attention from the danger which confronted him.
We believe it to be settled, however, by repeated adjudications, that a servant is not bound at all times and under all circumstances to be mindful of the dangers which surround him while engaged in the performance of his duty, even though he may be well aware of their existence.
In the case of Wallace v. C. V. R. Co. (138 N. Y. 302) a brakeman, while in the performance of his duty upon the top of a car attached to a moving train, was struck by a bridge which extended ■over the. track. He had been in the defendant’s employ for several weeks, and was perfectly familiar with the character and location of the structure with which he came into contact, but it was, held that he could not, as a matter of law, be charged with carelessness because he did not bear constantly in. mind its precise location. So in the case of Benthin v. N. Y. C. & H. R. R. R. Co. (24 App. Div. 303), and in that of Brown v. N. Y. & H. R. R. R. Co. (42 id. 548), both of which were recently decided by this court, it was held that a fireman while engaged in the performance of some duty which distracted his attention could not, as a matter of law, be adjudged guilty of contributory negligence because he for the time [302]*302being was unmindful of certain structures which had been erected in-close proximity to the track upon which his train was running, and of the existence of which he had knowledge; and it was also held that the risk-in these cases was n ot an assumed one, even though with suclrknowledge tlie injured party continued-in the master’s service. (See, also, McGovern v. Standard Oil Co., 11 App. Div. 588.) We think the eases last cited are decisive of the principle involved in the present case, -when all its circumstances are taken into account. The plaintiffs’ intestate was the engineer of an express train which was scheduled to -make rapid time. It did not ordinarily stop at Preble Station, and obviously there was no intention of its stopping there the night of the accident. On the contrary, it was approaching the station and the main street of- the village, which intersected and crossed the railroad just south of the station, at a high rate of speed. It was manifestly the duty of the engineer at this time to be watchful and vigilant as his train approached the highway crossing, lest it should collide with some person or vehicle thereon. ' It was doubtless his duty also to be mindful of the condition of the various switches along the line of the road : but to say, aa a matter of law, that while approaching a highway crossing he must bear in mind the precise location and character of every switch in the immediate vicinity, while- running at the rate of forty miles an hour, or that he must reduce the speed of his train to such a degree as to enable him to stop it within sixty feet of any danger which suddenly confronted him, is an exaction which in our opinion is beyond the requirements of any reasonable rule, and one which ought not to be enforced under the somewhat peculiar circumstances of this case.
The sum of the matter consequently is that upon the evidence in the case, as it stood when the nonsuit was granted, it-was, as we think, for the jury to say whether the defendant was guilty of an omission of duty which it owed the plaintiffs’ intestate in locating the switch where it did, and, if so, whether such omission was an efficient proximate cause of the accident which happened on the night of December first. Furthermore, the jury should have been permitted,, in the event that these two propositions were resolved in favor of the plaintiffs, to determine whether, in the circumstances of the case, the plaintiffs’ intestate assumed any incidental- risk which resulted from [303]*303the negligent location of the switch; or in other words, and what amounts to the same thing- in this instance, whether he was guilty of contributory negligence in failing to bear in mind the precise location and character of this switch as he approached the same. The refusal to submit these questions to the jury constituted error, which, in our opinion, requires a reversal of the judgment appealed: from..
All concurred, except Smith, J., dissenting.