
    John Kasosak, Respondent, v. Central Railroad Company of New Jersey, Appellant.
    Second Department,
    November 21, 1906.
    Railroad — employee injured by “shunted” car — promulgation of rules — expert evidence of custom.
    A recovery for an injury to a member of a repair gang on a railroad, who was struck by a “ shunted ” car while he was picking up coal from the tracks, cannot he based upon a finding that the railroad company was negligent in,failing to promulgate and enforce some rule to protect the repair gang from such an accident where no expert evidence is introduced in relation to the. custom in other yards or the efficiency of any proposed rule, for, as the men of the gang were generally scattered over the yards, the necessity of such a rule is not so obvious as to make the matter one of common knowledge and experience.
    Appeal by the defendant, the Central Railroad Company of Hew Jersey,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 21st day of December, 1905, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 11th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert Thorne, for the appellant.
    
      Frank Moss [David Bergstein and A. H. Sarasohn with him on the brief], for the respondent.
   Hooker, J.:

The plaintiff, a common laborer, was, at the time of the accident, a member of the yard gang employed in the railroad yards of the defendant at Penobscot. This yard contains six tracks other than the two used by the regular trains, and the former were used for making up coal trains. This was done by sending single cars loaded with coal through the yards under the impulse of a kick ” from the locomotive. Each car so shunted upon the siding was in charge of a brakeman. The plaintiff had been at work as a member of this yard gang for at least some months, and at about eight o’clock on the morning he was hurt, was in the act of picking up coal from between the tracks in this yard, which had been dropped from the cars as they had been shunted through the siding. His back was toward the west, from which all the cars were run, and he was in the act of stooping over to pick up coal when one of these coal cars ran into him, injuring his leg so severely that amputation above the ankle was necessary. At the time of the accident, a freight train was passing on an adjoining track, accompanied by the noises usually incident to such passage. This yard gang was in the habit of doing various things in the railroad yards, such as cleaning up the coal which had been dropped constantly from the coal ears as they ran through it, shoveling and cleaning away snow, and tamping the tracks.

The jury has predicated negligence on the defendant’s part, by reason of its failure to promulgate and enforce some rule, the operation of which would have prevented the accident to the plaintiff. It is suggested by way of argument, on the part of the respondent, that a rule requiring that the brakeman in charge of the shunted cars when approaching men at work in the yards, should have his car so nearly^ under control that it could be stopped in case a collision with the workmen seemed imminent; or that a rule that some person be regularly told off from'the yard gang, whose sole duty it would be to watch for approaching cars and give adequate warning of danger, would Have served to' prevent the unfortunate occurrence which is the subject of this suit. Ho expert evidence was introduced in relation to the custom in other yards, nor was any offered* bearing upon the probable efficiency of tiffs or any other proposed rule. The yard gang consisted of six or seven men, who at times worked somewhat close together, but at other' times were widely scattered through the yard.

We are unable to distinguish this case from that of Corcoran, v. N. Y, N. H. & H. R. R. Co.. (77 App. Div. 505), recently decided in this department. There-the plaintiff 'was a member of the yard gang of some four men working in the railroad yards of the defendant company; snow had fallen, and at the time of day when the accident occurred the atmosphere was so full of snow that it was difficult to see more than three or four car lengths ahead; the yard gang was somewhat scattered over the yard, cleaning snow from the switches, and two freight cars were being shunted through the yards; as they approached the plaintiff the br'akeman in charge of the cars shohted, as did another employee of the defendant, who happened to be standing near. He did not hear, and suffered a collision with the freight car and was injured. It is made to appear by the opinion of Mr. Justice Jenks in the Corcoran case that there was no expert evidence upon the question of the workability of the rule suggested, and it was held that under the circumstances of that case the propriety and necessity of promulgating a rule that some other employee be detailed to keep constant watch over the plaintiff,, is not so obvious as to make the question one of common experience and knowledge, and the nonsuit was unanimously affirmed.

The state of the ■ record in the case at bar is similar. It is probable that at the time the plaintiff was hurt the gang was working more closely together than the yard gang happened to be at the moment Corcoran was hurt; but a comparison of the situations surely reveals that the plaintiff in the- Corcoran case was in a place of greater danger at the time he was hurt than was the plaintiff here when he received his injury. The rule there must control us,' and we reverse the judgment and- order appealed from on the authority of that case.

Jenks and Gaynor, JJ., concurred; "Woodward and Miller, JJ., dissented.

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