
    (71 Hun, 213.)
    FIERO v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Railroad Conductors—Falling from Train—Contributory Negligence.
    In an action by a conductor of a train against the railroad company for injuries received in falling off the rear of his train while passing through it collecting tickets, the train being at the time in a tunnel, where from the inside of the rear car the reflection made it appear that there was another car behind, the negligence complained of being defendant’s failure to have a chain across the end of the rear platform, a requested charge that, if plaintiff knew there were but three cars in the train, he could not recover, was properly refused, as his mind might have been so occupied with his duties that he could have for the moment forgotten the number of ears, without being guilty of contributory negligence.
    Appeal from circuit court, Westchester county.
    Action by John Fiero against the Yew York Central & Hudson River Railroad Company for injuries received by plaintiff while in defendant’s employ as a conductor. From a judgment for plaintiff, and an order denying defendant’s motion on the minutes for a new trial, defendant appeals.
    Affirmed.
    Plaintiff had been an employe of defendant for 18 years, and had been a conductor on its through trains which ran along the central portion of the Fourth avenue tunnel in New York city, and on these trains he had not been obliged to take up or punch tickets while in the tunnel. A week prior to his injury he had been assigned to a local train which ran through the side tunnels. On these trains he was obliged to take up and punch tickets while the train was in the tunnel. In these side tunnels, especially on damp days, the reflection from the lights in the cars made it appear from the inside of the rear car as if there was still another car in the rear, and, when passing over the platform from one car to another, it was, owing to the darkness, smoke, and cinders, impossible to see. Plaintiff claimed to be ignorant of this reflection, and that defendant had notice of it. Plaintiff fell from the rear of the train while passing back, thinking there was a car in the rear. It was claimed that defendant was negligent in failing to have a chain across the end of the rear platform.
    Argued "before BARNARD, P. J., and PRATT, J.
    Frank Loomis, (D. W. Tears, of counsel,) for appellant.
    William P. Fiero, for respondent.
   PRATT, J.

The charge of the court correctly stated the respective duties due to each other from the plaintiff and defendant. Probably the court might have properly refused the various requests to charge thereafter made by defendant, on the ground that the charge already made sufficiently set forth their respective duties. But the court did not take that course, but received the requests, and restated the law in defendant’s favor, so far as could be done consistently with the law. The objection to the charge most strenuously urged was to the request to charge that, if plaintiff knew there were but three cars in the train, he could not recover. We think that request was properly refused. The plaintiff might know that fact, and yet the various duties to which his attention must be addressed might so occupy his mind that he might forget it for a moment, without being guilty of negligence that would bar his recovery. The care of a prudent man was the measure of his duty. Such a man might for an instant forget a well-known fact, when fully occupied with pressing duties.

Judgment affirmed, with costs.  