
    Loren Doing, Adm'r, v. The New York, Ontario & Western Railway Co., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 13, 1892.)
    
    New trial—Mistrial.
    In an action against a railroad company for negligence causing the death of an employee, the court, on motion for nonsuit, was inclined to hold that the decedent had equal means of knowledge of the risk with his employer, but offered to submit the questions to the jury if plaintiff would stipulate that on motion for a new trial, in case he was successful, the verdict might be set aside and the motion granted as of non-suit. Plaintiff agreed thereto provided he should stand in the same position as if a nonsuit had then been granted, and the court stated it would protect him. After verdict for plaintiff a motion for a new trial was granted without regard to plaintiff’s stipulation. Held, that there was a mistrial, and that a new trial should be had.
    Appeal by the plaintiff from an order entered on tKe 14th of August, 189Í, in Chenango county clerk’s office granting a hew lírial. °
    
      At the circuit in that county the plaintiff recovered a verdict of '$4,000. On the 3d day of March, 1890, Robert P Hare, the deceased, was in the employ of the defendant as car repaireu and at work in the defendant’s repair shop in the village of Norwich re pairing one of its cars which stood upon a track running into and through the building and extending from the building to another track in defendant’s yard connected therewith by a switch. The servants of the defendant coupled one of its engines and tender to a platform car heavily loaded with scrap-iron and drew it be yond the intersection of the track that ran into the repair shop and then uncoupled the platform car, reversed the engine and ran up said track leading into said shop; and it is alleged in the complaint that the car was “ carelessly and negligently shunted or kicked * * * with so much force that it could not be •stopped by the brakeman thereon, but said car went crashing through the closed doors of said shop and came in collision with the car under which said Robert P. Hare was at work for the defendant, repairing the same as aforesaid, and pushed said car upon and against said Hare with so much forcé that he died on the 4th day of March, 1890, of the injuries thus sustained.’’ After the •opening made by the. plaintiff the defendant moved to dismiss the complaint, which motion was made upon the complaint itself; •and the defendant’s counsel stated “ that there is a direct allegation of custom to do this very thing set out in the complaint, a •custom that had been existing for some time, and they say that the company ought to have knowledge of it; and if the company -ought to have knowledge of it the man working on the same track ¡should have knowledge o.f it; and of course if he did there could be no recovery.” In response to that motion and statement the •court observed: “ I will hear the evidence in the cáse and deny the motion ; ” an exception was taken by the defendant The general rules of the defendant found in a printed book containing •690 were introduced in evidence by the plaintiff, “from which it appeared that there was no rule forbidding the kicking or shunting of cars upon these three cripple tracks, or- in terms regulating the ■movement of cars thereon.”
    When the plaintiff rested the defendant moved for a nonsuit ’Thereupon the plaintiff’s counsel stated “ the cause of action is 'that they were bound to establish a reasonable and proper rule for the protection of the workmen in the machine shop.” Thereupon the court observed: “My present impressions in this case •are that a rule by the company, assuming the practice to be dangerous, would not be called for unless the practice was so prevalent as to give them constructive notice of the fact that it was being done; and if the practice was prevalent enough for that purpose, that it would be prevalent enough for the purpose of giving notice to this man, who had an equal opportunity at least •of ascertaining what the fact was and ascertaining the danger, and if he remained an employee of the company I don’t think the defendant would be liable. But I will not decide the case now, but will hear the evidence of the defendant on the other branch of 'the case, on. the question as to the defect m this car; * * «- I will deny the rqption for a nonsuit at present.” An exception was taken by the defendant. After the defendant’s evidence was. closed the plaintiff again stated: “We say that this is a question for the jury to say as to whether this company should have madeá rule prohibiting the kicking of cars on these cripple tracks. And if they should have made such a rule and failed to do so,, that they are liable in this action. And also whether this deceased was chargeable with knowledge of this custom to an extent to relieve the defendant from liability.” In the course-of the observations made by the court in denying the motion, it was. said; “ Now if it had notice of the fact that such was the custom,. I think it would be a question for the jury to say whether, first,, it was a dangerous custom; and second, whether the defendant, had this notice, and third, whether having this notice of the dangerous custom it was the defendant’s duty to. promulgate a rule-forbidding it. Now that would create a liability on the part of the defendant for any injury resulting, unless the plaintiff had knowledge of the fact that such custom existed, in which case the-defendant would be relieved from liability; because a railroad corporation, or any master, is not bound to take any more care-for. the safety of an employee than ■ he is bound to take for his. own safety. And if he knew of the fact of a dangerous custom existing, and made no complaint and no request to obviate it, then it is very clear that if he does not take care of his own safety his employer is not bound to take care of his safety.
    “There is some evidence from which possibly the .jury might, find that he did not know; that is, there is enough I think possibly to submit to the jury on the question as to these two or three-other employees or co-employees of the plaintiff. They, some of them, haying sworn .they did not know of that fact, there may besóme, evidence to submit to the jury as to whether he did know of the custom notwithstanding the fact that he had been there-eight months. I shall hold .this as a matter of law unless the plaintiff will stipulate that upon a motion for a new trial, in case-he should be successful, that if I determine that the evidence is. not sufficient to go to the jury, I may then set aside any verdict he may obtain and grant the motion as of npn-suit, and as of the time before the verdict was taken. If he will stipulate to that, effect, I will,submit this case to the jury upon the questions:
    “ First. As to whether there was a custom of shunting or kicking these cars into these .cripple switches.
    “Second. As to whether this defendant had constructive notice; of such custom.
    “ Third. As to whether there should have been a rule of the company forbidding the shunting of these cars into these cripple, switches. ■
    “ Fourth. As to whether the plaintiff’s intestate had notice of the-custom of shunting these cars in.
    “ Fifth. As to whether the plaintiff’s intestate was guilty of contributory negligence." Thereupon the" counsel for the plaintiff stated: “ That is satisfactory to us; only we wish it understood. • that if you should decide against us we shall stand in precisely the same relation and position that we would if you granted them a non-suit here to-day.” In response thereto the court ob.served: “ The court will protect the plaintiff in the matter. You may insert any requests to go to the jury, and a refusal and exception." Thereupon the defendant’s counsel took an exception to the denying of the motion for a non-suit at this time. In the course of the charge delivered to the jury the court observed: “ But if you find that such a custom existed, that it was known to the defendant’s officers to exist and that a reasonable regard for the safety of employees required that a rule should be made for•hidding the kicking of cars into these cripple tracks, then you 'will reach the fourth proposition, which the plaintiff must establish in order to recover, and that is that Robert P. Hare did not himself have knowledge of this custom. * * * If Robert' P. Hare had been working there from July and he had had knowledge of the fact that these cars were being kicked in, and he had made no complaint to the company, then if the company were held liable for this death you can see it would be unreasonable; for the company is not bound to take greater care of his life than he himself chooses to take.”
    At the close of the charge the court in response to certain requests charged “ That if Robert P. Hare had the means of knowledge he should have known of the custom. Second, that if he had the opportunity of knowing, he should have known of, the ■custom.” In response to a request to charge “ If the custom was in operation, was used around him, he would be presumed to know,” the court observed: “I decline to charge upon that •other than I have already charged,” and the defendant took an •exception. After the verdict of $4,000 was given for the plaintiff, an order was made allowing the defendant to have ninety days •to make and serve a case and exceptions, and the plaintiff to have a like time to make amendments, “ and that until the hearing and determination of said motion for a hew trial, entry of judgment .and all other proceedings herein be stayed.”
    
      W. F. Jenhs, for app’lt; Howard D. Newton, for resp’t
   Hardin, P. J.

We have looked into the opinion delivered by the learned circuit judge commenting upon the case, and we find the conclusion of his opinion to be as follows: “ It must be held, therefore, as matter of law, that the decedent Hare had equal opportunities of knowledge of the custom of the employees in kicking cars into that cripple track as had the defendant company, and that by continuing in their employ without protest and with that knowledge he has assumed the risk, and for the injury resulting therefrom the company cannot be held liable.” The court made an order “ that the motion for a new trial be, and the same is hereby granted, with costs to the defendant to abide the -event of the action.”

Important and serious questions were involved in the trial. . It was in effect stipulated upon the trial that if the court should at a subsequent stage be of the opinion that the plaintiff was for .any reason not entitled to recover the decision should be made and the plaintiff should “ stand in precisely the same relation and position that ” he had if the nonsuit were granted upon the trial. Apparently the court yielded to the language used by the plaintiff' in the stipulation given by the plaintiff on the trial. The order made upon granting a new trial does not observe and carry out. the stipulation made during the progress of the trial. Without passing upon the serious questions involved in the merits of the action, we are inclined to hold that there was a mistrial. We are therefore inclined to the conclusion that the rights of the respective' parties can be more safely and reasonably protected by requiring a new trial to be had before expressing our opinion upon the-questions involved in the merits. We therefore direct a new trial, and in form sustain the order appealed from. We think the order should be affirmed, without costs to either party.

Order affirmed, without costs.

Merwin, J., concurs ; Martin, J., concurs in result.  