#### Torrence M. Burtnett, Respondent, *v.*Erie Railroad Company, Appellant.

First Department,

December 31, 1913.

Railroad—injury to brakeman by sudden stopping of train—finding of negligence of engineer against weight of evidence — motion to dismiss all causes of action except that under Federal Employers’ Liability Act.

In an action by a brakeman to recover for personal injuries alleged to have been caused by the negligence of the defendant’s engineer in stopping the train with a violent jerk, thereby throwing the plaintiff from the top of a freight car, the plaintiff alleged causes of action under the Labor Law, the Railroad Law and the Federal Employers’ Liability Act, but *713it was conceded that the plaintiff was engaged in interstate commerce at the time of the accident. Although the train was being backed at the time of the accident the plaintiff claimed that he was thrown eight or ten feet toward "the engine.

*Held,*that it was error to refuse the defendant’s motion to dismiss all of the causes of action except that under the Federal Employers’ Liability Act; That a finding that the accident was the result of the negligence of the engineer was against the weight of evidence, and that a judgment for the plaintiff should be reversed and a new trial granted.

Appeal by the defendant, Erie 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 Hew York on the 13th day of December, 1912, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 30th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes.

*William C. Cannon,*for the appellant.

*Thomas J. O'Neill,*for the respondent.

Scott, J.:

The plaintiff was a brakeman in the employ of defendant, and had been so employed for several years. He was injured on the night of January 6, 1910, by falling from the top of a freight car. During his employment on the railroad for nearly twenty years plaintiff had become thoroughly familiar with the operation of freight trains and of the jolts and jars incident thereto. The train upon which plaintiff was working when he was injured was a fast freight which left Port Jervis at about seven-thirty o’clock p. M., going west. Before it reached a station known as Basket Bridge it was discovered that one of the cars, the eighth or ninth from the engine, had developed what is known as a *“*hot box,” which necessitated its being cut out and left on a siding. To effect this the disabled car was uncoupled from those behind it, which were left standing upon the track. The disabled car was backed onto a siding and left there. The engine and the cars which had been between it and the disabled one were then backed down upon the main track with a view to coupling onto the cars that had been left standing upon the track, thus reconstructing a solid train with the disabled car cut out. *714This process involved several distinct movements of backing, stopping and going ahead again. During these movements plaintiff stood on the top of the cars, moving back and forth on the running board, and transmitting to the engineer the signals given to him by a flagman who stood on the ground. All of these movements were safely completed exceptr the recoupling of the forward section to the rear section. The accident occurred as the front section was backing up slowly at a speed of not more than four or five miles an hour, or, as plaintiff expressed it, “safely and slowly.” It had been sleeting and snowing all night, and the ground was covered with a glaze of ice, the roofs of the cars being wet and slushy. As the forward section was thus backing the switchman gave a signal to stop, and the engineer stopped so suddenly that plaintiff was thrown, as he testifies, eight or ten feet *towards the engine,*or in a direction opposite to that in which the car on which he stood had been moving when it stopped. He fell to the ground and was severely injured. The negligence of which he complains is that the engineer stopped the train too suddenly, with a violent jerk. The only evidence as to the severity of the jolt, besides the fact that plaintiff was thrown, is his own estimate that “this jar felt three or four times as severe as on other occasions.”

The amended complaint contains four causes of action, plaintiff seeking to hold defendant under chapter 600 of the Laws of 1902 of this State, as re-enacted by the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14; since amd.*), known as the Employers’Liability Act; and under chapter 657 of the Laws of 1906 of this State (adding to Railroad Law [Glen. Laws, chap. 39; Laws of 1890, chap. 565], § 42a; since amd.*), and under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as since amd. by 36 id. 291, chap. 143), relating to injuries received by employees engaged in interstate commerce.

At the commencement of the trial and again at the close of the plaintiff’s case the defendant moved that all of the causes of action, except that under the Federal Employers’ Liability Act, be dismissed. The motion was denied and the case was *715submitted to the jury under a charge that permitted them to find a verdict under either of the State statutes or under the Federal act. This was clearly erroneous. It is alleged in the complaint and is conceded on all hands that, at the time he was injured, plaintiff was engaged in interstate commerce, and, consequently, the liability of the defendant is to be determined by the Federal act, which is paramount and exclusive. *(Michigan Central Railroad*v. *Vreeland,*227 U. S. 59.) The rules of liability under the Federal act differ in important particulars from the rules under the State act. In some respects they are more favorable to injured employees and in some respects less so. In any case the defendant was entitled to have the trial conducted and its liability determined by the only statute which was applicable.

We are further of the opinion that a finding that the accident was the result of negligence or incapacity on the part of the engineer was against the evidence. The plaintiff’s characterization of the jolt resulting from the stoppage of the train as *“*three or four times as severe as on other occasions ” is not sufficient to justify a finding that the engineer was guilty of negligence. Furthermore, the plaintiff’s account of the accident is incredible, because contrary to well-known natural laws. If the train had been suddenly stopped the tendency would have been to throw plaintiff in the direction in which the train was moving when it was stopped. He says that he was thrown violently in an opposite direction. On the argument it was ingeniously suggested that the result of a sudden stoppage would be to establish a sort of reflex action which might have thrown plaintiff towards the engine. There is no evidence that there was, or necessarily would be, any such action, and if there had been it could scarcely have been so severe as to throw plaintiff eight or ten feet, as he says he was thrown.

The judgment and order appealed from must be reversed and a new trial granted, with costs to appellaht to abide the event.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.

*

 See respectively Laws of 1910, chap. 353, and Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), § 64.— [Rep.