
    Edgar G. Russell, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Evidence that, after a brakeman had been struck by the perfecting roof of a. tool-house, the house was moved — it is inadmissible, although limited to the purgóse of showing that there was room to locate it elsewhere.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that while the plaintiff, a brakeman in the employ of the defendant railroad company, was descending a ladder on the side of a moving freight car he was struck by the projecting roof of a toolhouse. and injured.
    
      The roof was fifteen inches from the ladder pf the car. At the time of the accident the plaintiff had been in the employ of the defendant a month or more, but had gone over the route in question in the night time. The accident occurred in the night time, and there was testimony that the plaintiff did not actually know of the close proximity of the toolhouse to the track, and that the night of the accident was so dark that the toolhouse could not well be seen.
    ■ Held, that the questions of the defendant’s negligence arid of the plaintiff’s freedom from contributory negligence, and the question whether the plaintiff was in the reasonable discharge of his duty at the time of the accident, were prop-: erly submitted to the jury;
    That it was improper for the court to permit the plaintiff to show that the defendant, since, the accident, had moved the toolhouse further away from the track, notwithstanding that the plaintiff stated that such evidence was qffered solely .. for the purpose of showing that it was feasible for the defendant fo locate the toolhouse at a different place, and that the court instructed the jury that the evidence could only be considered upon that question.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of. Rensselaer on the 2d day of April, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 11th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.-
    
      Charles E. Patterson and C. C. Van Kirk, for the appellant.
    
      James Lansing and John B. Holmes, for the respondent,
   Houghton, J.:

The plaintiff, an employee of the defendant as brakeman, while descending a ladder on the side Of a moving freight car, , was hit by the projecting roof of a toolhouse, and brings this action béeause of - injuries received thereby.

The roof was fifteen inches from the ladder of this particular car. The plaintiff had been in the employ of the defendant a month or more, but had gone over the route in the night time, during which the accident occurred. There was testimony that the plaintiff did not actually know of the close proximity of the toolhouse to the track, and that the night of the accident was dark so that it could not be readily seen.

.We are of opinion, on the record before us, that the questions of negligence -of the defendant and contributory negligence of the. plaintiff, and whether he was in the reasonable discharge of his duty at the time of the accident, were properly submitted to the jury. (True v. Niagara Gorge R. R. Co., 70 App. Div. 383; affd., 175 N. Y. 487; Brown v. N. Y. C. & H. R. R. R. Co., 42 App. Div. 548; affd., 166 N. Y. 626 ; Benthin v. N. Y. C. & H. R. R. R. Co., 24 App. Div. 303.)

We are constrained to reverse the judgment, however, because of an error in the admission of evidence.

The plaintiff was permitted, against the defendant’s objection and exception, to show that the defendant, since the accident, had moved the toolhouse farther away from the track. It is true that the evidence was stated to be offered for the purpose of showing that it was feasible for the defendant to locate it at a different place, because it had in fact done so. The court, too, charged the jury that they were not to take this evidence into consideration in determining the negligence of the defendant, but only upon the question of the feasibility of the removal of the building.

Notwithstanding the announcement • of the purpose of the evidence and the instruction of the court, the evidence was so radically wrong and of such a dangerous character that we think it must be assumed that the defendant was injured by it.

In Clapper v. Town of Waterford (131 N. Y. 382) there was a similar attempt to limit the purpose of the proof, and.still its introduction was condemned. In commenting upon evidence of this character in that case, O’Brien, J., says: “ Upon whatever pretense such evidence is put into the case, it is generally used to mislead the jury. It is sometimes accepted by them as an admission of negligence, and its natural tendency is undoubtedly to influence them in that direction.”

The case of Morrell v. Peck (88 N. Y. 398) is relied upon to sustain the ruling. An examination of that case will show that the trial was had before the court without a jury, and that from his remarks upon the introduction of the evidence it appeared that he considered the evidence only for the limited purpose of showing control and possession of funds. An appellate court can much better rely upon the statement of a trial court, that it receives evidence for a limited purpose and weighs it only in that connection, than it can assume that jurors inexperienced in the law considered it in its limited application only. In addition, the case was cited and commented upon and held not to apply in Clapper v. Town of Waterford (supra).

So far as the evidence discloses, the toolhouse in question was the only one in dangerous proximity to the track, and we do not feel that the defendant’s negligence in maintaining it where it did is so clear that we would be justified in setting aside the verdict of a jury in its favor on that issue, and we, therefore, cannot ignore this error in the reception of evidence. The plaintiff could easily have proven the feasibility of the change 'of location of the tool-house by showing .its dimensions and the space at the side of the track without the introduction of any evidence which might, be improperly considered by the jury.

There were many requests on the part of the defendant to charge which were refused by the court. Some of them had' in. fact been charged, and others there is some question concerning, especially the 14th request. But in view of our conclusion that a new trial must be directed, it is unnecessary to consider whether or not there was error in this respect.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.'-  