#### Carmine Greco, Respondent, *v.*Long Island Railroad Company, Appellant.

Second Department,

November 28, 1913.

Master and servant — negligence — injury to watchman boarding moving train — contributory negligence — presumption of negligence.

In an action at common law brought by a watchman against a railroad company for personal injuries alleged to have been caused by the negligence of the defendant in failing to afford the plaintiff a reasonable opportunity to board a moving train, it was alleged that while the plaintiff was in the act of boarding the train the speed was increased with a “jerk,” so that he was thrown from the platform of a car. Evidence' examined, and *held,*insufficient to establish the plaintiff’s freedom from contributory negligence.

The boarding of a moving railroad train is presumptively negligent.

Appeal by the defendant, Long Island 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 Queens on the 10th day of January, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the Jth day of February, 1913, denying defendant’s motion for a new trial made upon the minutes.

*John J. Graham [Henry A. Uterhart*and *Joseph F. Keany*with him on the brief], for the appellant.

*Robert H. Roy,*for the respondent.

Jenks, P. J.:

This is a common-law action by a servant against a master, that works a steam surface railway, for negligence in failure to afford the servant a reasonable opportunity to board a moving train. It is charged that while the servant was in the act the speed of the train was increased with a *“*jerk,” so that he was thrown from the platform of a car of the train to the ground. The servant, who was a watchman at the crossing on the defendant’s line, regularly traveled on this train, using a pass, to his place of work. The jury returned its verdict in his favor and the defendant appeals.

In my opinion the plaintiff did not sustain the burden of the *299evidence upon the issue of contributory negligence. I think that it is the law of this State that the hoarding of a moving train of railway cars is presumptively negligent. *(Solomon*v. *Manhattan R. Co.,*103 N. Y. 437.) In the absence of any evidence to relieve the plaintiff from the application of such presumption he could not recover. (See Wigmore Ev. § 2491; Chamberlayne’s Mod. Law Ev. §§ 1017-1019; *Alabama Great Southern R. R. Co.*v. *Taylor,*129 Ala. 238, 245; Lawson Presump. Ev. 660 *et seq.)*Gray, J., in *Hunter*v. *C. & S. V. R. R. Co.*(126 N. Y. 18, 23), says: *“*To alight from, or to board a train in motion, is a negligent and hazardous act, which can only be made to appear excusable when, in the situation of the person, he is under such a coercion of circumstances as to raise a fair question as to whether he was really in the free possession and use of his faculties and judgment. (Solomon v. *Manhattan R. Co.,*103 N. Y. 437.) ” (See, too, opinion of Andrews, J., in *Solomon’s Case, supra,*443.) The plaintiff’s case does not excuse him within this rule. His version may he summarized as follows: He could not arrive at the station to take this particular train, and, therefore, he sought, of his own free will, to board it at a grade crossing where it did not usually stop. He stood at a point of safety and attempted to stop the approaching train by a signal of drawing his hand across his chest, directed to the engineer, when the approaching train was 30 or 40 feet distant. At that time the speed of the train was 8 or 9 miles an hour, hut after this signal and as it came to the crossing the speed was reduced to 2 or 3 miles an hour, and was continued at that rate until the plaintiff attempted to board the third car of the train, when the speed was accelerated with a jerk that caused the accident. Plaintiff expected that his signal would stop the train, hut perceived that the train kept on its way. The engineer of the locomotive smiled at the plaintiff as his train approached, and hailed him with the cry of “ Hello, Wappo.”

There was no *“*coercion of circumstances ” upon him that freed him from the penalty of a presumptively negligent act. The learned counsel for the respondent relies upon *Distler*v. *Long Island R. R. Co.*(151 N. Y. 424). In that case a divided *300court did say in the prevailing opinion that the decision in *Hunter’s Case (supra)*went to the *“*fullest limit.” But examination of the opinion shows that the judgment was reversed because affirmance required a holding that it was negligence *per se*to step upon a train moving at the rate of 2 to 3 miles an hour. There was another ground of reversal, namely, that the boarding of the train was not the direct and proximate cause of the accident, inasmuch as the plaintiff had gained the platform before the alleged negligent act was done. And, moreover, the court laid stress upon the esqpress invitation of the conductor, who it said was in entire charge of the train as representative of the defendant. I think that Gray, J., has stated accurately the force and effect of the decision in *Solomon’s*case, and I find that *Solomon’s*case is recognized as the law in *Mearns*v. *Central R. R. Co. of N. J.*(163 N. Y. 108, 111), in *Bartle*v. *N. Y. C. & H. R. R. R. Co.*(193 id. 362, 366), and in *Newmark*v. *N. Y. C. & H. R. R. R. Co.*(127 App. Div. 58 and 62.) Indeed, *Distler’s*case, as I read it, is not contradictory of *Solomon’s*case, for *Distler’s*case denies that the boarding of a train when moving at the rate of 2 to 3 miles an hour is negligence *per se,*while *Solomon’s*case asserts the general proposition that to board a moving train is presumptively negligent. As I do not decide that the plaintiff was negligent *per se,*I am not insubordinate to the authority of *Distler’s*case. As the proof was not sufficient to support a verdict which involved a finding of freedom from contributory negligence, a new trial should be granted.

The judgment and order are reversed and a new trial is granted, costs to abide the event.

Burr and Putnam, JJ., concurred; Carr and Stapleton, JJ., concurred in result.

Judgment and order reversed and new trial granted, costs to abide the event.