
    George Heck, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Duty of a railroad company to an employee of another railroad company who is lawfully in the yard of the first-méntioned company and is struck by its engine— reasonable, not great, ca/re is required.
    
    In an action brought by an employee of . one railroad company against another to recover damages for personal injuries sustained by him while lawfully in the yards of the defendant railroad company in consequence of being struck by an ■ engine operated by the latter’s employees, it is improper for the court to ' charge that it was the duty of the defendant railroad company tó use “ great care ” in the running of the engine, notwithstanding that the defendant railroad company had a rule requiring its employees to use great care to avoid injury. In stick a case the measure of the defendant’s obligation toward the plaintiff is the exercise of reasonable care.
    , 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 8th day of October, 1903, upon the verdict of a jury for $7,075,'and also from an order bearing date the 8th day of October, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the-minutes.
    
      O. O. Van EirJc, for the appellant.
    
      Lewis E. Griffith, G. MeGlellcm and J. O. Da/rdéss, for the respondent.
   Smith, J.:

Plaintiff is an employee of the Boston and Albany Railroad Company. While lawfully in the yards of the defendant upon the morning of February 17, 1899, he was struck by the tender of a switch engine operated by the defendant’s employees.' The claim of the.plaintiff is that this engine proceeded down the track upon which he was employed without warning by whistle, bell or light, and that he himself was free from contributory negligence. The defendant contends that its employees were free from negligence and that the accident was caused solely by the negligence of the plaintiff. This being the issue, the court defined the duty which the plaintiff owed to the defendant, as follows: “ It was the plaintiff’s duty, gentlemen — Mr. George Heck’s duty — to use the reasonable care of a reasonably prudent person under the circumstances. It was his duty to look and listen for the approach of any train or engine upon (the) track at that time. If you find that he did not use such care, and that he was injured as the result of his lack of care, then your verdict will be for the defendant, the railroad company.” The trial judge thereafter defined the duty which the defendant owed to the plaintiff in these words: It was the duty of the defendant, the railway company, and its employees in charge of this engine and tender to use great care in running its engine and tender, and to give sufficient warning of its approach.” The courthereafter charged: If you find that this defendant, the railway company, used such care in the operation of its engine and tender as I have stated to you was necessary, and that it gave sufficient warning of its approach, then you may find in this case a verdict for the defendant.” At the end of the charge the defendant’s attorney noted the following exception: “ Mr. Patterson: I except to that part of your Honor’s charge in which you said it was the duty of the defendant to use great care in the running of its engine and tender — whatever your Honor said on that subject.”

We are unable to see why this exception is not fatal to the judgment. It appeared in the evidence that the defendant company had a rule requiring its employees to use great care to avoid injury. The rule, however, which an employer gives to an employee cannot change the degree of care which the law requires from the employer to a stranger. The duty of the plaintiff was defined to be the reasonable care of a reasonably prudent person while almost in juxtaposition to this the jury was told that the defendant’s duty was to exercise great care for the plaintiff’s protection. At no other point in the charge was the jury told that reasonable care was the measure of the defendant’s duty,. and the inference seems to be irresistible under the instructions of the court that a greater degree of care was required from the defendant toward the plaintiff than he was required to exercise in his own behalf. This error was distinctly pointed out in the exception taken by the defendant’s counsel, and for it we are of the opinion that the judgment and order must he reversed.

In Leonard v. Brooklyn Heights R. R. Co. (57 App. Div. 125) a charge was sustained which defined the duty of the defendant to be to exercise “ a very high degree of care.” This case followed the authority of Koehne v. N. Y. & Q. Co. R. Co. (32 App. Div. 419). But those eases were both of them cases of injuries to passengers, to whom a railroad company owes a greater degree of care than to a stranger.

All concurred.

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