
    George W. Mohr, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    
      Contributory negligence — when a brakeman jumping on' a moving train is guilty thereof—liability of araiVroad company for providing for only sire inches of space between its moving can's.
    
    In an action to recover damages for personal injuries it appeared that the plaintiff was a brakeman engaged in switching cars; that after he had set the brake on a detached car he went back to the. train from which the car had been detached and while the train was moving at from four to six miles an hour boarded one of the cars, taking hold of a grabiron near the rear .end of the car with his right hand and placing one foot in a step on the car located about two feet above the rail; that as his foot touched the step one end of-it swung around under the car and'he was not able to reach the top o.f the car; that after reaching with his left hand for a grabiron on the end of the car and finding none, he took hold of a small platform at the end of the car and placed his ’other foot " in the step; that he rode -in that position until he came in conta.ct with the side of a car standing upon another track, the distance between, the outer surfaces of the sides of the cars being about six inches, and was thrown to the ground, sustaining the injuries of which he complained.
    It further appeared that á rule of the' company, known to the plaintiff, prohibited employes from “ jumping'on or off trains or engines while in motion,” and from “hanging upon or leaning out beyond the sides of moving cars.”
    It did not appear that it was necessary for the plaintiff to board the moving train, or that he could not have alighted, from the defective step to the ground if he had chosen.
    
      Meld, that the plaintiff failed to establish absence of contributory negligence on his part, and that a judgment entered upon a verdict in his favor should be reversed.
    
      Semble, that the court properly submitted to the jury the question whether the defendant was negligent, in so laying its tracks that the space between the outer surfaces of two cars passing each other at the place at which the accident occurred would be only about six inches.
    Appeal by the defendant, the Lehigh Valley 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 Erie on the 23d day of January, 1899, upon the verdict of a jury for $5,000, and also from an order made at the Erie Special Term and entered in ■ the office of the clerk of the county of Erie on the 19th day of January, 1899, denying the defendant’s motion for a new trial made upon a case- and exceptions.
    This appeal was transferred Irom the fourth department to the third department.
    
      Martin Carey, for the appellant.
    
      Simon Fleischman, for the respondent.
   Merwin, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff, in the afternoon of the 8th of May, 1896, in the coal yard of the defendant in Buffalo. The plaintiff was a yard brakeman in the employ of the defendant, and had been so for a considerable time and was familiar with the duties of the position. In the coal yard at the place where the plaintiff was injured, there were three tracks, running northerly and southerly, the westerly one being called the new switch track, the next one easterly the old scale track and the easterly one the tunnel track. The old scale track and the tunnel track intersect about 122 feet northerly from the place of the accident, and the new switch track runs into the tunnel track- about 330 feet northerly of the place of the accident.

Upon the day in question a crew, consisting of a conductor, an engineer, a fireman and two brakemen of whom the plaintiff was one, was engaged with an engine in taking a coal car from the new switch track and placing it upon the tunnel track. This car was twenty-three cars back, so that the .whole string up to and including that had to be pulled out. This was done, the string being drawn northerly far enough to throw the desired car upon the tunnel track. The plaintiff as end brakeman was on the car detached,, and remained there till it passed the switch on to the tunnel track. He then set the brake, left the car and went back to the string of cars that was being returned to the new switch track. He got on to-the easterly side of a car- four or five cars from the rear or southerly end of the string. At this time, as the plaintiff testifies, the train was moving from four to six miles an hour. The plaintiff also testifies that in getting on he with his right hand took hold of a grab-iron near the rear end of the car, and placed one foot in a step on the car that was about two feet above the rail; that as his foot touched the step one end of it swung around under the car, and he was not able to reach the top of the car; that he then reached with his left hand round for a grabiron, on the end of the car but found none; that he then with his left hand took hold of a small platform at the end of the car and placed his other foot also in the step, and in that position rode along till he came in contact with the side of a car standing on the old scale track, and was thrown to the ground and injured ; that this car' on the scale track was about 150 feet from the place where he got on:

At the point of the accident and for some distance on either side the old scale and the-new switch tracks are laid on a curve. There was evidence tending to show that this curve was irregular, was a, compound curve; that at the point of the accident the distance between the tracks was less than six feet, while at a point one hundred and twenty-seven feet south, and a point fifty feet north the-distance was about seven feet; that when a car like the one the plaintiff was on met at the place of the accident a car like the one there at that point, the space between the outer surfaces would be only about six inches; that the variation of the curve and the closeness of passing cars would not be noticed by the ordinary observer unless attention was particularly called to it. The plaintiff testified that prior to the accident he did not know that the tracks were so close; that his attention had never been called to that irregularity in the curve.

The trial court, properly I think, left it to the jury to say whether the defendant was negligent in the laying of its tracks.

The question whether the plaintiff showed that he was free from contributory negligence is, I think, a more serious question.

There was a rule of the company, known to the plaintiff, declaring that “ jumping on or off trains or engines while in motion,” hanging upon or leaning out beyond the sides of moving cars or engines,” were imprudent and hazardous acts, and expose persons committing them to extraordinary dangers, and enjoining all employees to avoid such dangers, and warning them that if they commit such acts it will be at their own peril and risk. The court charged the jury that if that rule was in force and operative against the plaintiff he could not recover. Upon the part of the plaintiff it was claimed that the company had waived the rule by allowing it to be habitually disregarded in the yard in question. The court left it to the jury to say whether there had been a waiver, charging them that if it was the habitual custom of the defendant to disregard it it would amount to a waiver.

There was evidence tending to show that in case a car or cars were detached from an engine and backed upon another track, it was customary for the rear bralceman to jump upon the car or cars so detached and see that they were properly protected. There is, however, practically no evidence of any custom to jump upon a moving train attached to and controlled by an engine. There was, I think, no evidence sufficient to sustain a finding that the rule, so far as. applicable to the act of plaintiff in jumping on the moving train, was waived.

When plaintiff left the detached car and went back to the other cars the car on the old scale track was in plain sight about sixty feet off. There was apparently no occasion for plaintiff to get on to the train moving back. He was not told to do so. The. train did not. so far as appears, need him. It had started to go back without him It was only necessary to shove the cars far enough on to the new switch track to allow of free, passage of cars on the tunnel track. The other brakeman was on the train; the conductor was on the ■ ground where he could direct the action of the engineer. The train was in' the control of the engine. The plaintiff says he-, got on because he' thought it was necessary for him to do so to protect that string-of cars. The evidence fails to show any such necessity, or any apparent reason for his thinking so, or any duty imposed upon him requiring him to jump on the moving train. When he found that, by reason of the turning of the step, he could not get up on top of the car, he made no effort to get off, and says he don’t know whether he could have gotten off or not. He made no effort to step on to the platform. He could reach' the grabiron standing upon' the ground. If so, it would seem that he could have stepped off had he chosen to do so. He says he didn’t think anything about the car on the other track, although he knew it was there. The court held that the defendant was not responsible for the defective step. Disregard of reasonable rules is contributory negligence. (Beach Contrib. Neg. § 373.)

The plaintiff, I think, failed to show the absence of contributory negligence, and the evidence is not sufficient to sustain the finding of the jury in that regard. For this reason, the judgment should be reversed.

All concurred; Smith and Kellogg, JJ., in the result.

Judgment and order reversed on the law and the facts and new trial granted, with costs to the appellant to abide the event.  