
    John Fiero, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Negligence—Railroad—Contributory.
    Plaintiff, who was a conductor, was injured while passing through the Harlem tunnel by falling from the rear of the last car, which was not provided with a chain. Held, that a request to charge that if he knew that there were but three cars in the train he could not recover was properly refused, as he might know that fact, and yet the various duties might so occupy his mind that he might forget it for a moment without being guilty of negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion on the minutes to set aside the verdict and for a new trial.
    Plaintiff had been a conductor in defendant’s employ for several-years, and had been accustomed to pass through the main or central portion of the Harlem tunnel, but a week before the accident-had been assigned to a train which ran through the side tunnel,, which was not thoroughly ventilated and was liable to become-dark by reason of fog and smoke. The train, on the occasion in, question, was composed of three cars, the last car not being provided with a chain across the rear end. While engaged in taking up tickets the plaintiff came to the last car, and seeing the reflection in the glass of the rear door, supposed that another car was behind, and stepping out fell from the car and was severely injured. There were two red lights on the rear platform which he kicked off as he fell.
    
      Frank Loomis (D. W. Tears, of counsel), for app’lt; William P. Fiero, for resp’t.
   Pratt, J.

The charge of the court correctly stated the respective duties due to each other from the plaintiff and defendant Probably the court might have properly refused the various requests to charge thereafter made by defendant, on the ground that the charge already made sufficiently set forth their respective duties. But the court did not take that course, but received the requests and restated the law in defendant’s favor so far as could be done consistently with the law.

The objection to the charge most strenuously urged was to the request to charge that if plaintiff knew there were but three cars in the train he could not recover.

We think that request was properly refused. The plaintiff might know that fact and yet the various duties to which his attention must be addressed might so occupy his mind that he might forget it for a moment without being guilty of negligence that would bar his recovery.

The care of a prudent man was the measure of his duty. Such a man might for an instant forget a well known fact when fully occupied with pressing duties.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  