
    ELIZA BRIGHT, ADMINISTRATRIX OF HARRY BRIGHT, DECEASED, RESPONDENT, v. THE LEHIGH AND HUDSON RIVER RAILWAY COMPANY, APPELLANT.
    Argued June 19, 1919
    Decided November 17, 1919.
    On appeal from the Supreme Court, in which the following per curiam was, filed:
    “This is the defendant’s appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury in, the Warren Circuit Court.
    “The plaintiff’s intestate was a switchman employed by the defendant company in its yards on the outskirts of Phillipshnrg. On the occasion in question, about midnight, according to the proofs, he went, on the order of the yardmaster, to throw a switch to allow an interstate train to go through the yard on what is known as the ‘main’ or dead’ track. The eviclence permits of the inference that after he had placed the switch, and as the interstate train was going through, he stood some five feet away upon the adjoining track, watching for hot boxes, as it was his duty to do, when there was ‘kicked •down’ upon this track on which he was standing an oil car which ran over him and killed him, without warning to him.
    “The question is whether, under the proofs, the defendant company may he said to have been negligent in failing to give some sort of warning of the ‘kicking down5 of this car.
    “We think that question must he answered in the affirmative.
    • “There was evidence of a custom to give warnitíg of which the defendant company' had knowledge.
    “Mr. Carroll testified:
    “ ‘Q. When a flying drill was made in the yard, was it customary to warn in any way ?
    “ ‘A. Certainly, to have a man down there to shout or whistle, or to have a man on the front of the car.5 This wit-' ness also testified that it was tire yardmaster’s orders not to ‘kick any cars on number one while ninety-eight was pulling through the lead.5
    “To the same effect is Mr. Purcell’s and Mr. Blackman’s testimony.
    “The question whether there was a custom recognized hy the company, and which was broken, was properly submitted by the trial judge to the jury.
    “The defendant, however, complains that the rules of the company expressly negative the idea of a custom to warn. We do not so read the rules.
    “It is also claimed hy the defendant that the decedent had notice that the ear which hit him was coming down. Whether he had or had not seasonable notice was, we think, a jury question.
    “It seems clear a verdict could not have been properly directed.
    “We find no prejudicial error in the charge, nor in the refusal to charge, nor in tire admission of evidence.
    “The judgment will he affirmed, with costs.55-
    
      Eor the respondent, George M. Shipman and Giiberi Collins.
    
    For the appellant, William C. Gebhardt.
    
   Per Curiam.

The judgment under review will be affirmed, for the reasons set forth in the opinion of. the Supreme Court. '

For affirmance — The Chancellor, Parker, Bergen, Mint urn, Black, White, Heepenheimer, Williams, Taylor, Ackerson, JJ. 10.

For reversal — Xone.  