
    Matthew Lendgren, Appellant, v. The Erie Railroad Company, Respondent.
    Second Department,
    October 27, 1911.
    Railroad — master and servant' — negligence — evidence — injury to. switchman in railroad yard — appeal.
    Upon an appeal from a nonsuit plaintiff is- entitled to the most favorable view of the evidence.
    In an action by a switchman to recover for personal injmies receivec^while working in a railroad yard the mere fact that one-of the switches had been changed and that there were irons, etc., scattered about the prem-. ises at the time of the accident, is not evidence of negligence on the part of the railroad. It must appear that there was a defect of some kind at the place where the accident occurred and that such defect was the cause of the injuries.
    Evidence in an action by a switchman in a railroad yard to recover for injuries received by being run over by a locomotive examined, and held, that .a judgment entered upon the dismissal of the complaint at the close of plaintiff’s case should be affirmed.
    Appeal by the plaintiff, Matthew Lendgren, from a judgment of the Supreme Court in favor of the defendant, entered ■ in the office of the clerk of the county of Kings on the 20th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 25th day of March, 1911, denying the plaintiff’s motion for leave to submit the facts to the jury and for a new trial made upon the minutes.
    
      John F. McIntyre [ Joseph A. Shay and Edward Weiss with him on the brief], for the appellant.
    
      Frederic B. Jennings [William C. Cannon with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff was nonsuited, and upon this appeal is entitled to have the evidence regarded in its best aspects. The plaintiff pleaded a cause of action under the Employers’ Liability Act of the State of New Jersey, which is substantially like our own, and the facts alleged, and which we will regard as haying been proved ’ for the purposes of this appeal, are substantially as follows: The plaintiff was employed by the defendant on the 18th day of October, 1910, as a mechanic’s helper and extra switchman, remaining, in' this employment up to the nineteenth day of November, at which time he received the injuries. He was assigned to duty in the yard at Jersey City, .this yard being in process of readjustment in connection with the Bergen cut, and his duties required him to report to the engine dispatcher at six o’clock in the evening, when he was assigned to his work during the night. On the evening, of the nineteenth of November the plaintiff reported for duty and was assigned to throw the switches for the incoming engines, which ran in upon a “lead track,” and were then turned in upon switches for the purpose of having their ash pans ■ cleaned and their coal replenished. The plaintiff had discharged this duty for some fifteen or twenty engines on the night in question, and had discovered that some of the switches had been moved duiing the day, and that the ties between. the rails were not filled in with earth, and that there were various irons known as “ fish plates ” and other loose materials scattered around the premises, as would be the case where extensive changes were being made. Just before the accident he was summoned to throw the switches for an engine which was being made ready to' go out. At the time of this summons he was at the shanty provided for him, near switch No. 1, as shown upon the diagram in evidence, and after throwing this switch he signaled the engineer to come on, and started down the track toward switch No. 2. He was in control of the engine — the engineer obeyed his signals — and to reach switch No. 2 it was necessary to" pass over the “lead track,” which the plaintiff attempted to do at a distance of about eleven feet to the east of the switch and between the oncoming engine and the switch. The plaintiff testifies that as he stepped between thé rails of this “lead track” his foot caught upon something which seemed to hold him; that he was thrown down,' and "that before he could make a" signal or get free he felt the engine coming down upon him, and his leg was taken off. The evidence showed that the switch light was set against the oncommg engine, but the evidence is equally clear that the engine did not approach the switch light nearer than 'about eleven feet, and was moving very slowly, so that it could be stopped on the instant; and it is not claimed that the plaintiff had in any mannér countermanded his signal to the engineer to come forward, so that it must be clear that no negligence can be predicated upon the theory that the engine was not properly operated. The only suggestion in the case of any. negligence in this respect is raised by a ruling of the court upon an effort of the plaintiff to establish a so-called custom in reference to the point at which the engine should stop before reaching a switch with the light set against it, but the ruling was so obviously correct that we do not feel that, it is necessary to discuss it. The only ground of defendant’s negligence worthy of any serious consideration is'based upon the plaintiff’s claim, partly at common law and partly under the statute, that the defendant had failed to provide a reasonably safe place- for him to work; that -there was a< defect of the ways, works and machinery. The evidence, however, fails to tell us of any defect which was the producing cause of the accident. It is true that there was evidence that the yard had undergone some changes, but the plaintiff was regularly employed there, and not only knew that changes were being made,- but he had, on the very evening of the accident, been at work upon this very territory, operating these same switches, and his testimony shows that he was thoroughly familiar with all of the conditions existing at the point of the accident, yet we áre left without a particle of evidence as to what actually produced the accident. There is some testimony about “fish plates,” but he does not tell us that it was a 'fish plate which caught his toe, or, if it was, that it was not-properly placed or-that there was anything unusual about it or inconsistent with the requirements of practical railroading. True, he testifies that the ties between the rails were bare, but there is no testimony that this was not a proper condition at a moving switch in a railroad yard, and the whole case is absolutely barren of any evidence from which the jury might properly find that there was any defect in the railroad at the point where the accident occurred, either as it related to a reasonably safe place in which. to work, or in respect to the ways, works and machinery of the defendant, assuming that the railroad yard could be held to be a “way,” within the meaning of ' the Employers’ Liability Act. The mere fact that the switch had been changed in location, and that there were irons, etc., scattered about the premises is of no possible importance, unless it is shown that there was a defect of• some kind at the point of the accident, and all of the plaintiff’s testimony in respect to this question is as consistent with perfect conditions of practical railroading as with the theory of a defect. There was nb question of negligence to be submitted to the jury. The evidence failed to establish a cause of action, and the learned court properly granted the defendant’s motion to dismiss the complaint.

The judgment and order appealed from should be affimied,. with costs.

Present — Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Judgment and order unanimously affirmed, with costs.  