
    Elizabeth Sheehan, as Administratrix, etc., of James P. Sheehan, Deceased, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    Second Department,
    March 17, 1911.
    Railroad—negligence — attempt to board moving train — duty of guard — contributory negligence — erroneous charge.
    Where a person attempted to board a moving train having closed doors, and which was rapidly increasing its speed, and succeeded in catching some park of the car with both hands and in placing his feet upon the lower step,' the duty of the guard in charge of the train was limited to what a person of ordinary judgment and prudence would do, in good faith, in an attempt to save him from the consequences of his act.
    Evidence in- an action brought to recover for the death of one who attempted t& board a moving train as aforesaid examined, and held, insufficient to show that the guard pushed him from the car.
    In an action to recover for death so caused, it is error to charge that the guard was required to do the best that a man of good judgment would have done under the circumstances. He was only required to do what such a man would have done when confronted by the conditions suddenly arising.
    In such action it is error to charge that the decedent was not guilty of contributory negligence if the jury find that the train was going very slowly at the time he attempted to board it.
    Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of June, 1910, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George J). Yeomans with him on the brief], for the appellant.
    
      William J. McArthur [Martin T. Ma/nton with him on the brief], for the respondent.
   Thomas, J.:

For a distance of 200 feet along defendant’s track was a platform, raised some six inches higher than the rail, used as an approach for the use of defendant’s passengers. Along this decedent ran in pursuit of a moving train until he reached the rear platform of the last car but one, seized some parts of the car with both hands, placed one or both feet on the lower step, when he lost his footing, was dragged some distance, and was so injured that he died the following day. It is undoubted that the guard warned him to “ get off, you will get hurt,” and plaintiff’s witness, Harrison, states that the guard added, or I will push you off.” The only possible issue of fact would be, did the guard negligently force decedent from the car? The decedent was where he had no right to be, in a place of grave peril, and the guard’s whole duty was limited to doing what a person of ordinary judgment and prudence would do in a good faith attempt to save the decedent from the consequences of his own rash attempt. Whether in the fulfillment of such duty he should have signaled the train to be stopped or should have opened the gates and made an attempt to bring the decedent in, or whatever other rescue should have been attempted, need not be considered. The plaintiff charges that the guard chose the negligent course. Perchance any course, if unsuccessful, would have been accused as culpable. The plaintiff charges that the decedent was pushed off. The evidence of this is (1) that the guard told him he would push him off; (2) that Harrison testified that the guard grabbed the decedent by the shoulder, the decedent’s foot left the lower step and he was dragged; (3) Fee testified that at a distance of 60 feet, and at about six o’clock, in January, he saw both of the decedent’s feet on the step and the guard lean over and put his hand on decedent’s shoulder. The guard stated that he did not touch him, but with his hand warned him away as he tried to board the moving train. The decedent died on the following day, but told the doctor at the hospital that he slipped and fell off, and made o reference to the conductor. The decedent was so terribly hired and his condition was such that the incidents of the acci- ) dent may not have been clear to him. But had he been violently dislodged from the train, such physical compulsion seemingly would have been a matter of some recollection and remark. While the guard placed his hand on decedent’s shoulder, as Fee says, or grabbed him by the shoulder, as Harrison states, there is no evidence of attempted removal from the car, save the inference of expulsion from the fact that the decedent shortly afterwards fell. The evidence of violent expulsion, feeble in itself, is, when opposed to decedent’s statement and the evidence of the guard, not preponderating.

But the court erred in the charge to the jury. The learned justice correctly charged that decedent was negligent in attempting to board the moving train, and thereupon submitted to the jury the one issue, whether the guard negligently pushed him from the train, acting at the time as a man of ordinary judgment would have acted under the circumstances. The main charge may not be criticised, unless in the statement that the guard was required to do “ the best that a man of good judgment would have done under those circumstances.” The guard was not obliged to do the best hat a man of good judgment would do, but it was his duty to do what such a man would have done confronted by the conditions suddenly arising. But the plaintiff’s attorney finally secured a charge in effect that the decedent was not guilty of contributory negligence, if the jury found that the train was going very slowly at the time he attempted to enter. This was error, and it must be presumed that it diverted the attention of the jury from the proper issue. This was a train of cars, with closed gates, moving away from a station with quickly increasing speed, and the decedent was clearly negligent in an attempt to enter. So the justice should have charged that decedent came to his place of peril by his own negligent act, and that the guard owed him no duty as a carrier, save that the law required him to afford such relief, using ordinary skill and judgment, as the occasion reasonably permitted. If he used such judgment, lie could not be negligent, and that was all that obligated him.

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

Jenks, P. J., Hiesohbeeg, Carr and Rich, JJ., concurren.

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