
    John Kinney, Appellant, v. Rutland Railroad Company, Respondent.
    Third Department,
    June 27, 1906.
    Negligence — injury to switchman by switch handle — Employers’ Liability Act — when negligence and contributory negligence for jury.
    If a plaintiff has served a notice under the Employers’ Liability Act he cannot be nonsuited on the ground that, with knowledge of the defendant’s fault, he has by his conduct assumed the risk. A nonsuit can only be granted upon two grounds: (1) That as a matter of law the defendant has not been guilty of negligence, or (2) that as a matter of law the plaintiff has been guilty of contributory negligence.
    When a switchman jumps upon a moving car in order to loosen the brake', as was the custom and as it was bis duty to do, and while in the act of climbing upon the car is struck and injured by the perpendicular rod of an old-fashioned switch extending at a greater height from the ground than is usual in better models of switches in common use, the question of the defendant’s negligence in providing such a switch is for the jury, and a nonsuit is error.
    Nor is such switchman guilty of contributory negligence as a matter of law in failing to observe such switch rod when in running to jump upon the moving car he was looking to his footing to avoid stumbling over the rails and ties.
    Although facts which may justify a finding by the jury that the plaintiff assumed the risk may also constitute contributory negligence as a matter of law, conversely the defense of assumed risk may also be available, although the court cannot say that the plaintiff contributed to the injury as a matter of law.
    Appeal by the plaintiff, John Kinney, from a judgment of't-lie Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 26th day of September, 1905, upon the dismissal of the complaint by direction of the court after a trial at the St. Lawrence Trial Term.
    
      D. B. Lucey, for the appellant.
    
      John P. Badger, for the respondent.
   Smith, J. :

The action is for negligence. At the close of plaintiff’s case the defendant moved for a nonsuit, which was granted. The proper notice was served under chapter 600 of the Laws of 1902, so that this nonsuit cannot stand upon the ground that the plaintiff, with knowledge of the defendant’s fault, has by his contract assumed the risk. It can stand only upon one of two grounds: First, that as matter of law the defendant' has not been guilty of negligence; second, that as matter of law the plaintiff has been guilty of negligence which contributed to produce his injury.

In defendant’s yard in Ogdensburg are a large number of tracks. Among them are what are called switch tracks 3 and 4. Switch track 3 runs from the main line east of the station to the local freight shed west of the station. A spur called track Ro. 4 branches off the southerly side of Ko. 3 and extends west a short distance and is used exclusively for storing cars temporarily. Switch track 4 is connected with switch 3 by a switch. That switch is in part composed of a wooden framework which is placed between track 3 and the track northerly thereof. It is an old-fashioned switch, the framework of which is about four feet from the base, and above the framework the switchrod reaches up thirteen inches. This switch is about three feet from track 3, three feet five inches from track 4, and about four feet from the track northerly from track 3. This rod is a perpendicular rod attached to the southerly side of this framework. Upon the 10th day of October, 1904, the plaintiff was one of a switching crew and ivas required to get some cars from switch track 4. He was taken by the engine down to said switch track and some cars were put on and the engine started up. It was noticed that upon one car the brake Avas set and it became plaintiff’s duty to climb upon that car and loosen the brake. It Avas the custom among railroad men and was clearly the duty of the plaintiff to do this while the cars Avere moving. Plaintiff was standing north of this track. In order to get upon the car he had to pass upon SAvitch track 3. Upon that track the ties Avere standing up considerably from the ground, so far at least as to require careful heed on his part that he should not stumble either over the ties or over the north rail of track 3. He jumped upon the car while it was moving, and while in the act of climbing upon the car Avas struck in his right side by this perpendicular rod upon the switch described, and thereby received the injuries for which this action is brought.

We are of opinion that the trial justice Avas not authorized to dismiss the plaintiff’s complaint because of lack of proof of defendant’s negligence. It appears in the case that other switches were used in the same yard, which were ground switches, Avith which an accident of this kind could not have happened. The bottom of a freight car is three feet one and one-half inches abo\re the rail. One standing upon the step would be ten inches loAver, so that while the evidence is not entirely clear, the jury might Avell have found that this rod Avould come within about sixteen inches of the car as it passed, and the top of the rod would be from two to three feet higher than the foot of a man standing upon the step of the car. Formerly these switches Avere made with a rod extending two or three feet higher than the rod in question and upon the top of that rod Avere placed some markers. Because of the dangerous character of such a construction the top of this rod was cut off. It Avas left, however, thirteen inches above the frame of the SAvitch and no reason is given why it could not have been cut doAvn to the frame. It is in evidence that in switching cars from qdace to place, brakemen, in order to perform the services required of them, are required to jump upon the cars and ride for a short distance. With this custom known and permitted by the defendant we cannot say as a matter of law that the defendant was not negligent in leaving a structure of this kind in such close proximity to a car upon the side of which one of its workmen might be compelled to ride.

Hor do we think that the trial judge was justified in taking from the jury the question of the plaintiff’s contributory negligence. It is not always possible to clearly distinguish between circumstances upon which is authorized the defense of contributory negligence and that of assumed risk. While the defense of assumed risk is one based upon the contract relation, and while that defense has been made by the statute above cited in all cases a question of fact for the jury, the same facts which will justify such a defense may show that as matter of law the plaintiff himself was at the same time guilty of a want of such reasonable care as is required of him in order to fasten liability upon the defendant for an in jury received. On the other hand, the defense that the plaintiff assumed the risk might be available where the facts were such that the court could not say as matter of law that the plaintiff was negligent. In this case the plaintiff in running to the car was required to look well to his footing that he should not stumble over the ties and rails over which he was compelled to pass in reaching the car upon which he was to climb to loosen the brake. He was required both by the direction of the yardtnaster and the exigency of the situation to make haste that they might draw out of the way of a passenger train which was waiting to come upon the track. lie swears that he had passed many of these switches, and possibly this very switch, while upon the side of a car, without injury. Under these circumstances we think it was for the jury to say whether plaintiff exercised the care of a reasonably prudent man or was guilty of such negligence as would preclude his recovery.

The judgment of the trial court should, therefore, be reversed and á new trial granted, with costs to appellant to abide the event.

All concurred.

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