#### Paul Kratka, Respondent, *v.*Boston and Maine Railroad, Appellant.

Third Department,

May 6, 1914.

Railroad — negligence — injury to pedestrian struck by west-bound train after waiting for east-bound train to pass — evidence — duty of flagman.

In an action for personal injuries it appeared that the plaintiff, who was familiar with the locality, started to cross a railroad track after a train going east had passed about thirty feet, and was hit by a west-bound train upon a parallel track; that there was an electric light near-by, and a headlight upon the locomotive which hit him. He testified that before he stepped upon the track he looked in both directions, and that theflagnian who stood near-by swinging Ms lantern while the freight train was passing told him to go ahead. His wife, who.stood on the sidewalk with him while the freight train was passing, corroborated him, but the flagman testified that he did not tell the plaintiff to cross, and prevented his wife from doing so. He was corroborated by other witnesses. The plaintiff stated while in the hospital that the flagman said nothing to him, and that he was not sure whether he had a lantern or not. The court refused defendant’s request to charge that the flagman did his whole duty if he warned the plaintiff not to cross.

*Held,*that a judgment for the plaintiff should be reversed for the error of the court in refusing the defendant’s request to charge, and also upon the ground that the verdict is against the evidence.

Woodward, J., dissented, with opinion.

Appeal by the defendant, Boston and Maine Railroad, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 19th day of May, 1913, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 2d day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.

*Jarvis P. O’Brien,*for the appellant.

*Leary & Fullerton [James A. Leary*of counsel], for the respondent.

Kellogg, J.:

Plaintiff and his wife were standing on the sidewalk a few feet from the track while the freight train was going east. *197He was familiar with the locality; knew it was a double-track road, and that beyond the track upon which the freight train was passing was the west-bound track. When the freight train had passed about thirty feet he started to cross the track and was hit by the west-bound train upon the other track. Directly in front of him, and a few feet from the crossing, was.an electric light. A headlight was upon the locomotive that hit him. He says before he stepped upon the track he looked in both directions. He also says that the flagman at the crossing stood near him while the freight train was passing, but a few feet off the walk towards the flagman’s shanty, and that the flagman told him to go ahead, and was swinging his lantern. He does not make it clear how the flagman was swinging the lantern, but says at several places that he was swinging it in the same direction the railroad ran. That would be across the street. His wife corroborates him.

The evidence of the flagman shows that he was standing in the street, a few feet from the plaintiff, while the freight was passing, with his lantern in his hand; that he told the plaintiff not to go, and as he went grabbed-the wife and prevented her from going. Other witnesses corroborate the flagman. The plaintiff made a statement at the hospital in which the other facts are accurately stated, and in which he said that the flagman said nothing to him, and he was not sure whether he had a lantern or not. Several persons present when the statement was made show that he understood its contents.

It is improbable that the flagman told him to go ahead. The plaintiff’s entire case stands upon that allegation. In the absence of it he clearly would be guilty of contributory negligence. He has evidently put that statement into the flagman’s mouth in order to get to the jury. It is opposed to the facts of the case and the evidence. It is not the duty of the court to affirm a judgment when it is clear that it rests upon a known false statement as to a fact.

The defendant asked the court to charge that if the flagman had shouted to Mr. Kratka when he started to cross, and warned him not to cross, the flagman did his whole duty. The evidence of the flagman and other witnesses show that when he was standing in the street at the crossing with his *198lantern in his hand he hallooed to the plaintiff to stop. This request was made with reference to that evidence, and meant, if it means anything, that if- the flagman stood in the street with his lantern and shouted to the plaintiff and told him not to cross, he did his duty. It is difficult to see what more was required of him. The court declined the request, stating that it would leave it to the jury to determine whether he did or not. If the flagman was at the crossing, in his proper place, with his lantern, and told the plaintiff not to cross, then there could be no recovery. The request so deafly means that that I think it was the duty of the court to make the charge, or otherwise, explain what other acts might be considered with reference to the flagman’s duty. For this error in ruling I favor a reversal, and also upon the ground that the verdict is against the evidence.

All concurred, except Woodward, J., dissenting in opinion.

Woodward, J.

(dissenting):

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The accident occurred at a grade crossing in Mechanicville on the evening of January 25, 1913, at which point the defendant maintains a flagman. The plaintiff, with his wife, approached this crossing on the evening in question, and they were detained by a passing freight train. When this train had passed the plaintiff stepped forward, looking in both directions, as he testifies, and seeing no train approaching, told his wife to come on, and an instant later was struck by the engine of a passenger train passing over this grade crossing at the rate of twenty to twenty-five miles per hour, and was carried on the pilot of the engine a distance of twenty-one miles before he was discovered and taken from his position. The plaintiff testified that the flagman, standing near his shanty, swung his lantern and told him to go ahead at the time of the accident, and the evidence,.while conflicting, was sufficient to go to the jury upon the issues presented, and, the jury having found for the plaintiff, there is evidence sufficient to support the judgment. No question of the defendant’s negligence is suggested by the appeal, and we are clearly of *199opinion that it cannot he said as a matter of law that the plaintiff was guilty of contributory negligence under the facts as the jury might properly have found them under the evidence.

I think the jury was properly instructed as to the law, and that the contention of the defendant that the court erred in refusing to charge the jury *“*that if the flagman at the crossing shouted to Mr. Kratka when he started to cross, and warned him not to cross, that the flagman did his whole duty,” is without force. It is the province of the jury to determine upon all of the evidence whether the defendant’s servant has performed his duty, and it cannot be presumed that the jury bad any difficulty upon this point. There was a direct and irreconcilable conflict of evidence upon the question of what the flagman did; that was the crucial point in the litigation. The plaintiff contended that the flagman stood near his shanty at the side of the street, instead of in the center where he could observe the whole situation, and that the flagman told him to go ahead after the freight train had passed, and that he acted upon this assurance, in connection with his own observations, and met with the accident. On the'other hand the flagman testified that he shouted at the plaintiff and warned him not to cross, and the jury certainly needed no instruction that if they accepted the flagman’s testimony the plaintiff could not recover. Obviously the plaintiff, if he had warning, was not entitled to recover, and it was only in the event .that the jury accepted his version of the facts, rather than those of the flagman, that the jury were warranted in giving him a verdict, and this was made entirely clear by the charge of the court.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event. The finding of fact disapproved of is that the plaintiff was not guilty of contributory negligence, and that the defendant was negligent.