
    Patrick Morrissey, Respondent, v. The Westchester Electric Railway Company, Appellant.
    
      Negligence—a person struck while removing an obstruction from a railroad track — improper charge of contribxitory negligence.
    
    In an action based upon negligence upon the part of the defendant, a railroad | corporation, the plaintiff, who was the foreman of a gang of men engaged in opening a drain between the tracks of the defendant’s road, when a car, approaching in a westerly direction upon the north track, stopped about twenty-five feet east of him, testified that, noticing a plank about seven feet in length lying diagonally, so that its west end was from five to seven inches upon the north rail of the north track, and its east end about two feet north of that rail, he motioned to the motorman, who was looking at him, and whose face was towards him, not to come on, and proceeded to cross the north track for the purpose of removing the plank, and that, while he was stooping down with his back toward the car to do this, the car proceeded, unobserved by him, and struck the plank, which swung round' and struck him upon the leg, causing the injuries complained of.
    The court, after referring to the evidence of the plaintiff, charged the jury that, if the accident happened in the way the plaintiff said it did, “then you will say that this motorman did not exercise-proper care when he approached this man and injured him in the way he says he did.”
    
      Held, that this part of the charge was erroneous, because, under the plaintiff’s testimony, the questions whether the motorman saw or should have seen the signal given by the plaintiff, and whether, even if he did see the plaintiff’s signal, he saw, or should have seen or apprehended that, after the plaintiff had safely crossed the track, there was some physical obstruction to the passage of the car, should have been submitted to the jury;
    That a request, upon the part of the defendant, that the court charge the jury that 1 ‘ if you believe that the defendant’s car stopped before it reached the plaintiff, and that the plaintiff saw it approach and took his chances in respect to the management of the plank, your verdict shall be for the defendant,” was properly refused, as, if the plank were so situated upon the track that the plaintiff apprehended that the safety of the passengers in the car was endangered, he was not chargeable, as matter of law, with contributory negligence, since he might have had reason to apprehend no personal injury in removing the plank under such circumstances. ' .
    Appeal by the defendant, The Westchester Electric Railway Company, from a .judgment of the Supreme Court in favor' of the plaintiff, entered in the office of the cleric of the county of Westchester on the 21st day of October, 1896, upon the verdict of a jury, and also from an order bearing date the 31st day of October, 1896, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. .
    The action was based upon the defendant’s alleged negligence.
    The following diagram shows the position of the defendant’s tracks .on which the accident occurred:
    
      
    
    
      JJatha/n Ottmger, William J5Í. Oohen and Edga/r M. Johnson, for the appellant.
    
      Isaac JJ. Mills, for the respondent.
   Bradley, J.:

The alleged cause of the plaintiff’s action is that he sustained a personal injury occasioned hy the negligence. of ■ the defendant. The plaintiff was foreman of a gang of men engaged in .opening a drain between the two tracks of the defendant’s trolley railroad-in the .city of Mount Yernon. The course of the defendant’s road was east and west.. The space between the two tracks was four feet and seven inches, the width of each track about four feet, and between the north track and the retaining wall of the Hew York, Hew Haven and Hartford railroad at that locality was six feet and four inches. The accident in question occurred about half past four o’clock in the afternoon of August 10,1895. That was the third day the plaintiff, with the other workmen, had been engaged in opening the trench. They made some use' of the tracks of the defendant’s road in doing the work, and on the approach of the cars they would clear off the tracks to enable them to pass. As the car in question was .approaching from the east they were engaged in driving plank on the northern side of the open trench for the support of that side. This work was being done near the southern rail of the west-bound track. The car stopped about twenty-five feet east of this place. Thereupon the plaintiff, who was standing between the tracks, crossed over to the north side of the northerly track, the car proceeded forward and the plaintiff’s leg was broken by contact with it of a loose spruce plank about seven feet in length, eight inches in width and two inches thick.

The plaintiff’s evidence is, that seeing one end of the plank five to seven inches on the northern rail and lying diagonally with the line of the road so that the east end was about two feet northerly and outside of said rail, he signaled the motormair not to come forward, and proceeded to cross the track to remove the plank from it; that in doing so his back was to the car, and as he stooped down, to pick up and remove the plank, the car proceeded forward unobserved by him, the plank was struck by it and swung around and hit him on the leg with the serious result before mentioned. Some other witnesses saw the' jfiaintiff make the signal motion with his arm as he proceeded to go from between the tracks across the north one, but none of the other witnesses saw the plank on the track, and, so far as appears, they took no observation of the situation in that respect. The plaintiff also testified that when he swung his arm, making the signal, .the motorman, being at the front end of the car, was facing him. Another witness testified that when he afterward saw the plank one end of it was splintered. This constituted mainly the evidence in support of the alleged cause of action.

The theory of the defense upon the merits was that it was impossible for the accident to have occurred as testified to by the plaintiff, because the length of the plank was no less than the distance from the north rail of the northerly track to the retaining wall of the Hew York, Hew Haven and Hartford railroad, and that, therefore, the plank could not be whirled around in that space by a blow from the car, and that the plaintiff’s injury might be accounted for by his stepping Upon a loose paving stone which turned under his foot, resulting in his fall and the plank upon him. There .is some evidence given by witnesses on the part of the defendant, tending in the direction of the latter fact, but. is not necessarily very distinct or clear in its support.

While the width of the space between the rail of the northerly track and the retaining wall before mentioned was not sufficient to permit the plank to whirl around upon an axis at its easterly end, where it was located, it is not seen that it was impossible for the plank, when put in' motion, to have taken such a course as to permit it to swing around, and on the cessation of the motion to be located north of the rail. The fact and nature of the plaintiff’s injury, in view of the situation in which he was found, rendered it apparent that he had received a violent .blow, and the inference was fairly required that it' came from the plank.

The motorman says that he saw no plank on the rail or any signal from the plaintiff for ,him not' to proceed with the car. Without the signal, there appeared to the motorman no occasion to apprehend any danger by proceeding forward with the car, and, therefore, 'the support for the charge of negligence of the defendant was largely dependent upon the signal which the plaintiff says he gave as he started to. cross the track for the purpose of removing the plank from the rail. The motorman had previously passed over the road while the work.on the trench was progressing, and it may be assumed that he was advised of the necessity of proceeding over this place with care.

The plaintiff’s evidence indicated that his purpose in what he proceeded to do was to remove the plank from the track, with the view to the safe passage of the car at that place. The court .having referred to the evidence of the plaintiff as to the manner in which the accident occurred, charged the jury, “ Yet you take the whole of the testimony and all the circumstances, and say if this accident occurred. in this way — and, if it did not — then your verdict is for the defendant, and, if it did — then you have taken one step towards a verdict for the plaintiff. That is, if you find it did, then you will say that this motorman did not exercise proper care when he approached this man, and injured him in the way he says he did.” Exception to the latter part of this charge was taken by the defendant’s counsel. The plaintiff was not entitled to the same degree of care from the defendant as that which is due to a passenger from his common carrier. The court so charged. The plaintiff had the right to the reasonable care of the defendant for his protection. Upon his statement of the occurrence the jury were permitted to impute negligence to the defendant. But upon the assumption that the accident occurred in the way the plaintiff testified it did, ivas the court justified in the instruction that the motorman did not exercise proper care % This, in practical effect, was a direction, as matter of law, to the jury that if they found that the accident occurred as the plaintiff testified it did, the defendant was guilty of negligence. This was error, unless the adoption of his testimony as true would exclude all inferences to the contrary of such imputation. (Hart v. Hudson River Bridge Co., 80 N. Y. 622; Salt Springs Nat. Bank v. Sloan, 135 id. 371, 383.) If the motorman had seen the plaintiff raise his hand as a signal for him not to thus move the car forward, he was further fairly required to endeavor to ascertain the cause, which he would have seen if he had delayed until the plaintiff had removed the plank. But whether the motorman saw the signal, or ought to have seen it if he did not, were questions upon which his negligence somewhat depended and were for the jury. The inference arising from the adoption of the plaintiff’s evidence as true would be very strong that the movement of his hand was seen by the motorman. The plaintiff says: “ Tie was looking at me; his face was looking at me.” Then, if he saw the movement of the plaintiff’s hand, did the inference necessarily arise, under the circumstances, that he did see, or ought to have seen or apprehended, that there was any physical interruption to the passage of the car after the plaintiff had crossed the track ? In S. S. N. Bank v. Sloan (supra) it was said that “if the uncontradicted evidence show a case where different inferences might be drawn from undisputed facts as to the existence or non-existence of negligence, it has been the lawr for many'years that such inferences are to be drawn by the jury under proper instructions from the court.” In the view taken of the version of the plaintiff, assuming it to be true, inferences were permitted which did not necessarily require- the conclusion that the defendant was chargeable with negligence, however strongly its tendency was in support of the charge. On the.examination of the entire charge it is not seen that the defendant may not have been prejudiced by this portion of the charge so. made.

One other portion of the charge relating to the question of the contributory negligence of the plaintiff would for the like reason have been deemed an invasion of the province of the jury, if the exception taken had been such as to require the consideration of that portion of the charge. • The exception' is not available to raise . the question..

The defendant’s counsel also excepted to the refusal of the court to charge the jury that “ if you believe that the defendant’s car stopped before it reached the plaintiff, and that the plaintiff saw it approach and took his chances in respect to the management of the plank, your verdict shall be for the defendant.” The reason given by the learned court for the refusal to charge tlie proposition Av-as that it left out an important element, which was that the car started, inasmuch as it had stopped before the plaintiff proceeded to cross the track. However that may be, there was no error in' the refusal to charge as requested. If the plank Avas so situated on the track that the plaintiff had reason to and did apprehend that the safety of passengers in the car would be endangered unless it was removed, he was not necessarily, as matter of law, chargeable with contributory negligence in such an emergency, since he may also have had reason in the case supposed to apprehend no personal injury. (Eckert v. Long Island R. R. Co., 43 N. Y. 502 ; McClain v. Brooklyn City R. R. Co., 116 id. 459; Gibney v. State, 137 id. 1.)

Ho other question requires consideration.

The judgment and order should be reversed and new trial granted, costs to abide the event.

All concurred.

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