
    Cora A. Prince, as Ancillary Administratrix, etc., of William O. Prince, Deceased, Respondent, v. Central New England Railway Company, Appellant.
    Third Department,
    November 15, 1911.
    Railroad—negligence — action for death — duty to keep track in repair — trial — charge — reasonable care.
    ■ Where in an action against a railroad to recover for the death of an engineer whose locomotive was derailed owing, as plaintiff claimed, to a defective condition of the track, the court charges that it was defendant’s duty to furnish deceased a reasonably safe place to work, but fails to specify the degree of care that it was bound to. exercise to make the place safe, it is error to refuse to charge at defendant’s request that it was only required to exercise reasonable care in its effort to make the track safe. '
    Hotjg-htox and Bbtts, JJ., dissented.
    Appeal by the defendant, the Central- New England Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, .entered in the office of the clerk of. the county of Ulster on the 15th day of December, 1910, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 28th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes. * _
    
      Elbert N. Oakes, Thomas Watts and Charles M. Sheafe, Jr., for the appellant.
    
      John G. Van Etten, for the respondent.
   Sewell, J.:

This action was brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

The deceased was an engineer in the employ of the defendant, and at the time of the' accident was in charge of a locomotive drawing a freight train of forty cars. At a point a short distance east of the station in the village of Lloyd, Ulster county, the locomotive and the first' five cars of the train became derailed, and, after running about 180 feet over the ties, the locomotive tipped over and. rolled down a bank and killed the deceased. The derailment took place at or near the easterly end of a switch. There was evidence tending to show that the ties were of a dark color, appeared to be soft and well worn, and that the switch rail was not properly bolted or connected. The evidence of a defect in the ties was not satisfactory, but it is insisted on the part of the plaintiff that there, was evidence from which a jury might be permitted to say that the accident was due to the defective condition of the switch or track, which might have been discovered by reasonable inspection. It is not necessary, however, to consider this question, as the judgment must be reversed for an error in the charge. In submitting the case to the jury, the learned trial justice in his principal charge stated that it was the duty of the defendant to furnish the deceased a reasonably safe place in which to work, but omitted to specify the degree of care it was the duty of the defendant to exercise in providing such a place. After the charge the following request was made by the defendant’s counsel: “We ask your honor to instruct the jury that the rule is not that we were bound to make the track safe, as stated by the counsel, but that we were only required to exercise reasonable care in the effort to make it safe. ”

The court refused, and said: “ I think the charge was reasonably sufficient on that subject.”

Defendant’s counsel excepted to the refusal of the court to charge as requested.

It is apparent that the refusal of the request to charge was, under the circumstances, an intimation to the jury that the rule of law requested was not wholly sound. It substantially told the jury that, if the defendant had used reasonable care and prudence in the effort to make the place safe, it was nevertheless negligent if the place was not in fact reasonably safe. We think that taking the charge, the request and the refusal of the request together, they might, and doubtless did, give the jury to understand that they were only required to consider or determine whether the place was reasonably safe. It certainly was not fair to the defendant to leave the case to the jury without informing them that the defendant was simply bound to exercise reasonable care and prudence in providing a reasonably safe place.

We, therefore, think that the rights of the defendant were not protected as the law required, and that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Houghton and Betts, JJ., dissenting.

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