
    James Gorman, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    March 12, 1909.
    Railroad — negligence — injury to laborer employed on trestle — contributory negligence — involuntary act in sudden peril —charge.
    Action to recover for personal injuries received by the employee of a contractor working on a railroad trestle who was struck by a train owing to the alleged failure of flagmen stationed by the railroad to give warning. On all the evidence, held, that the jury were justified in finding the defendant negligent in the operation of its train and. that the plaintiff was free from contributory negligence.
    Although the plaintiff was sitting in a very limited space between two tracks when the train approached, and might possibly have escaped injury had he remained seated instead of attempting to avoid it when he suddenly discovered the train fifteen feet away, it is for the jury to say whether he used reasonable care in the emergency.
    When there was no claim by the plaintiff that his proximity to a “third rail” had anything to do with the accident and the defendant requested a charge on that issue, it is incumbent upon it to show that it was harmed by an alleged error in the charge.
    ■ Appeal by the defendant, The Brooklyn Heights 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 Kings on the 4th day of June, 1908, upon the verdict of a jury for $2,700, and also from an order entered in said clerk’s office on the 30th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Henry M. Dater and George F. Elliott, for the respondent.
   Woodward, J.:

The plaintiff Was injured in 1905, while employed by Westinghouse, Church, Kerr & Co., contracting engineers, who were engaged under a contract with the Long Island Railroad Company in performing certain work for the latter company on the trestle owned by it across Jamaica bay, from Long Island to ¡Rockaway. The defendant was at the time operating a steam railroad over this trestle, under a trackage arrangement with the Long Island ¡Railroad Company. The plaintiff was employed, with a gang of fifty . or sixty men, upon this trestle, the plaintiff’s particular occupation being to put out the fires which were started from time to time by the other workmen in performing the work. The Long Island ¡Railroad Company had stationed flagmen at a distance of about 150 feet each way from the point where the men were at work, and it. appears from the evidence that it was the custom for these flagmen to bring all trains to a stop; that then a warning was given to the workmen, and when they had cleared the tracks, the trains were permitted to pass along. On the day of the accident, at about four-twenty p. m., the plaintiff was sitting upon the pail, which he used in his work, between the rails of the double tracks upon this trestle. An electrical equipment, known as a third, rail, had been placed between the tracks, and there was a space between these third rails. The plaintiff was in this space when the train came upon him, as is claimed in his behalf, without having made the customary stop, and without other warning. He says that he attempted to get up, -for the purpose of avoiding danger, and that before he could reach a standing position he was struck, not by the engine, but by the front step of the first coach, sustaining serious injuries. There was a sharp conflict of evidence as to just what occurred at the time of the accident and just prior thereto, but we are persuaded that there was evidence which justified the jury in finding that the defendant was negligent in the operation of its train, under the circumstances presented, and that the plaintiff was free from contributory negligence. It is claimed that the plaintiff was in a position of safety if lie had remained sitting just as he was, and there was evidence from which it might be gathered that if he had remained absolutely passive he might have escaped, but the evidence also showed that the space was very limited between the tracks, allowing for the overhang of the cars, and the plaintiff suddenly discovering the train coming towards him twelve or fifteen feet away, at the rate of six or eight miles an hour, was not bound to do the most prudent thing in the world; he was only called upon to exercise the degree of care to be expected of the ordinarily prudent man under the eircumstances, and it was clearly for the jury to say whether his action, under the circumstances, constituted reasonable care.

There was some very incidental testimony in the case in reference to the third rail, and defendant’s counsel asked the court to charge the jury that the jury cannot find from the testimony in this case that there was any electricity in the third rail. The court refused to charge this, but subsequently upon the consent of plaintiff’s coun sel the court charged : So you must assume there was no electricity in the rail, but you may consider whether the men knew it or not.” Defendant excepted to this modification.- While we see no occasion for the modification, we do not see that it could have prejudiced the defendant in any way. There was, as we see it, no occasion for calling on the court to make any charge in reference to this question; no one was apparently contending that the third rail had anything to do with the accident; it was referred to merely as showing the physical situation, and the charge as finally made to the jury complied with the defendant’s request in the main. In the modification it could only go to the question of the plaintiff’s contributory negligence, and the whole contention of the plaintiff was that he did not have time to get out of the way after he discovered the approaching engine, not that he was absorbed in the contemplation of the third fail or its condition. The defendant having invited the reference to the condition of the third rail, it is incumbent upon it to show that harm came from the modification in order to justify a reversal, and we are of the opinion that this much of the charge could not have changed the result of the trial in any measure.

The judgment and order appealed from should be affirmed.

Present — Hirschberg, P. J., Woodward, Jenks, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  