
    Michael McQuigan, Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed December 16, 1890.)
    
    Hegligbnce—Railroads—Brakeman— Contributory negligence.
    The plaintiff, who was head brakeman on defendant’s train, slipped upon the displaced cover of a manhole in the water tank on the tender, while passing back from the engine to set brakes. He asserted that the circular plank or lining which should have been bolted to the cover, so as to fit in. the hole, was absent. Feld, that if the lining was off and the plaintiff knew it was off, it was negligence on his part to step upon it under the circumstances, and the defendant would not be chargeable with the consequences.
    (Bradley and Brown, JJ"., dissent.)
    Appeal from judgment of the general term of the supreme court, in the fourth judicial department, entered on an order affirming a judgment rendered in favor of the plaintiff after a. trial at circuit.
    
      Louis Marshall, for app’lt; Jacob Schwartz, for resp’t
   Parker, J.

This action was brought to recover for injuries sustained by the plaintiff while in defendant’s service. The plaintiff alleged as the basis of defendant’s liability its omission to perform a duty owing to him. ¡November 1, 1883, he was and for some months prior thereto had been employed as head brakeman on defendant’s freight trains running between Buffalo and Elmira. His place when not applying brakes on forward cars was upon the locomotive and when directed to do so it was his duty to pass off the locomotive, over the tender and on to the cars and apply or loosen the brakes. When injured he was attempting to reach the forward car for such purpose, and in passing from the tender stepped with his left foot upon the manhole cover. As he did so, it slipped to the right, turned on its edge and his foot passed down into the manhole, bringing his person in contact with the edge of the iron cover in such manner as to occasion him severe injury. The manhole was 16-J- inches in diameter, surrounded by an iron cylinder extending 10 inches above the deck of the water tank and closed by a 'cover. Through it water is taken into the tank and for that purpose the cover is removed and should be replaced when the tank is filled. One of the duties of the head brakeman is to supply the tender with water. The cover was made of boiler iron, to the under side of which was bolted a circular piece of two inch pine plank, the diameter of which was slightly less than that of the hole, so that when placed in position the aperture was securely closed.

The plaintiff asserts that the plank was absent from the cover at this time, and for that reason it was not retained in its place, but slid off, resulting in the injury complained of. Without expressing any opinion upon the question whether the evidence presented permitted the finding that the master had failed in the performance of a duty which he owed to the plaintiff, we will briefly allude to an error in the charge of the court which requires a new trial. The court instructed the jury that “ if the lining was entirely off from this cover, and the plaintiff knew that it was off, you are to say whether it was negligence upon his part to step upon it in the manner that he claims to have done, and through which this injury occurred.” The defendant excepted, and then made the following request: “ Now, as a matter of law, I ask the court to charge that if the lining was off, and the plaintiff knew it was off, it was negligence upon his part to step upon it under such circumstances.” The request was denied, and an exception taken. If the plaintiff, having knowledge of the candi-tian of the cover, stepped upon it, the defendant is not chargeable with the consequences. Powers v. N. Y., L. E. & W. R. R. Co., 98 N. Y., 274; Odell v. N. Y. C. & H. R. R. R. Co., 120 id., 324; 31 N. Y. State Rep., 27. It is not pretended that there was any sudden exigency which caused him to step there, nor were any special circumstances adduced for the purpose of explaining how, with knowledge of the situation, he acted as a man without it. Indeed his position was that he did not know of the defective cover. He so testified. And if the jury had been bound to find in accordance with his testimony, no harm could have resulted from the charge. But they were not, because (1), he was a party to the action; (2), two witnesses testified that he told them that the plank had ■dropped into the tank; (3), he testified that the tank was filled eight times on the trip. On some of the occasions he took the water, and on others Campbell, and, further, that “ in taking water. I would lift the cover and put it on the coal beside me, * * * put water in and take it back and put it on again.” Clearly, whether he acted with knowledge of the condition of the cover, presented a question for the jury, and the defendant, under the circumstances disclosed, was entitled to have the jury instructed that if he did, he could not recover.

The judgment should be reversed.

All concur, except Bradley and Brown, JJ., dissenting, and Follett, Ch. J., not sitting. 
      
       Reversing 14 N. Y. State Rep., 651.
     