
    Charles Williams, Resp’t, v. The Delaware, Lackawanna and Western R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    2. Negligence—What will amount to contributory negligence.
    The plaintiff was permitted to use the tracks of a railroad for the purpose of a foot passage, he knowing the ordinary use of the tracks by the company, and the risks and dangers incident to the use which he was making of the tracks. In an action for damages for injuries received by him, the defendant asked the trial court to instruct the jury “that the plaintiff, in walking the track, assumed the risk of being injured by the ordinary operation of trains on the defendant’s road,” which was refused. Held, to be error.
    9. Same—Quere as to liability of defendants, where the road was USED DIFFERENTLY FROM WHAT MIGHT BE EXPECTED, OR PROPER PRECAUTIONS OMITTED.
    This instruction, however, left the question open whether the accident to the plaintiff resulted from any operation of the trains which he was not bound to anticipate or from the omission of any precaution which he had the right to expect.
    Appeal from a judgment entered on the verdict of a jury and from an order denying the defendant’s motion for a new trial, on a case and exceptions.
    
      J. G. Milburn, for appl’t; Phillip Laing, for resp’t.
   Per Curiam.

We think the defendant was entitled to the instruction, asked for, to the effect that “the plaintiff in walking the track assumed the risk of being injured by the ordinary operation of trains on the defendant’s road.’’ Whether he was there as a mere license, or whether under an implied invitation, to use the track for the purpose of foot passage, the plaintiff must be supposed to have exercised the privilege with full knowledge of the ordinary use of the tracks by the defendant, and the ordinary risks attendant upon their use by foot passengers. He was not a stranger to the premises, nor to the operation of the defendant’s trains. On the contrary, he was himself .employed as an engineer, running an engine in the same yard. He knew whether trains and engines were ordinarily run on both tracks, at the same time, and in opposite directions; whether yard engines were ordinarily provided with head lights on their tenders, or rang their bells when running within the yard; whether the men in charge of such engines were required to keep a look out for foot passengers on the track; whether any other precautions were ordinarily adopted to prevent injury to such foot passengers; in short, he knew the dangers incident to the use which he was making of the track, under the ordinary operation of the trains, and he owed the duty to himself to guard against those dangers. The instruction asked for, left the question open whether the accident to the plaintiff resulted from any operation of the trains which he was not bound to anticipate, or from the omission of any precaution which he had the right to expect.

We think the refusal to instruct the jury, as requested in this particular, was error for which the judgment should be reversed, and a new trial granted.  