
    EDWARD D. PHILLIPS v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY.
    Argued June 5, 1902
    Decided November 10, 1902.
    In an action by a brakeman against a railroad for injuries, the evidence showed that plaintiff was injured by being rolled between a car of the train on which he belonged and a freight car on an adjoining track. Plaintiff claimed that his duty required him to get down from the side of the moving train for the purpose of cutting out three loaded cars and place them on a siding, but the testimony of the conductor and of all the other trainmen was to the effect that no cars were to be taken out at that point to be put upon a siding. Held, that xslaintiff was injured at a place where his duties did not call him, and through his own negligence.
    On defendant’s rule to show cause.
    Before Gummebe, Chiee Justice, and Justices Van Syoicel, Fort and Garretson.
    
      For the plaintiff, William C. Gebhardi.
    
    For the defendant, George M. Shipman.
    
   Garretson, J.

The plaintiff was a brakeman in the employ of the defendant company, and was injured, in the yard at Hampton Junction, by being squeezed and rolled between a car of a moving mixed coal and freight train and a freight car on an adjoining track. His place of duty was upon the cars of the moving train. He claims that his duty, at the time he was injured, required him to get down.from the side of the moving train for the purpose of getting off to throw a switch, so as to take out of the train three loaded cars and qilaee them on a siding. He alone testifies as to the intention to take these three cars out of the train and place them on the siding. To the contrary of this is the testimony of the train conductor, of the head brakeman, of the engineer, of a brakeman who was put in the plaintiff’s place after he was injured, of a brakeman on the drill engine that made up the. train, and of the yardmaster, all of whom testify that no cars were, or were to be, taken out of the train to be put upon a siding.

The clear weight of the evidence is that if the plaintiff was injured as he testifies, he was, at the time of the injury, in a place where his duties did not call him, and was injured .through his own negligence.

The rule to show cause should be made absolute.  