#### HINES v. NEW YORK CENT. & H. R. R. Co.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Master and Servant—Risks Assumed.

Where a railroad company permits a telltale to get so out of order that a person standing on a car could pass through it without touching it, and in consequence thereof a brakeman is injured, the company is liable, as the brakeman did not assume the risk of the telltale not being maintained as required by law.

Appeal from circuit court, Dutchess county.

Action by Bennett F. Hines against the New York Central & Hudson River Railroad Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $2,900, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

F. Loomis (Robert F. Wilkinson, of counsel), for appellant.

A. M. & G. Card, for respondent.

DYKMAN, J.

This is an appeal from a judgment and order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of damages for injuries sustained by the plaintiff while in the employ of the defendant upon the Harlem branch of its road in the capacity of a brakeman. There is a public highway which crosses the railroad a short distance above Dover Furnace upon an ordinary wooden bridge of sufficient height to admit the safe passage of a brakeman when sitting down, but not when standing. The company had caused the usual warning telltale to be con*830structed on the north side of the bridge, and the plaintiff had knowledge of the existence of both. The telltale was constructed in the usual manner, so that the suspended ropes could strike a brakeman on the top of a car passing under the same, but on the day of the accident two of the midmost wires were bent, and the ropes which hung from them twisted around the others, so as to leave an opening sufficiently wide to permit the passage of the body of a man without contact. On the day of the accident, in January, 1893, the plaintiff was operating the brakes upon a freight train of six cars, including a caboose. As the train approached Dover Furnace from the north, the plaintiff crossed on top of the first car in front of the caboose, facing towards the south, and applied the brake on the north end of the second car from the caboose, then crossed the second car, and applied the brake on the north end of the third car. All this time the car was in sight of the bridge. After applying those brakes the plaintiff remained on the top of the third -car, facing the north. At a signal given for that purpose, the plaintiff let off the brake on the third car, and was walking on the top of the second car, when he was struck by the bridge, and knocked ■down on the top of the car, and received the serious injury for which this action is brought. The cause was tried at the circuit, and the .jury rendered a verdict in favor of the plaintiff for $2,900. At the close of the plaintiff’s case upon the trial the counsel for the defendant moved to dismiss the complaint on the ground of the absence of proof of negligence on the part of the defendant, and of the freedom of the plaintiff from negligence. Also that it was proven that the negligence of the plaintiff did contribute to the injury. That motion was denied, and the defendant now assigns that denial as error. At that stage of the case there was evidence from which the jury might find in favor of the plaintiff upon all the questions involved. At the time of the accident the plaintiff was engaged in the discharge of his duties, and at the place where he was required to be for that purpose; and, while he assumed all the risk incident to a dangerous employment by the acceptance of the service, he yet had the right to expect that the defendant would use the care required by law for his protection.

The charge of the trial judge to the jury was favorable to the defendant, and imposed upon the plaintiff’s case a burden which was heavy and severe. The jury was told that: “If the company erected a good telltale and the telltale was in order, it is immaterial to the defendant whether the man was notified by it or not. They were not bound to except by the law, and if they obeyed the law they were not liable.” Again, the jury was told: “The plaintiff must prove that he did his duty. A brakeman upon a train is bound to be vigilant and alert, to look out for danger, to inform himself constantly as to the effect of any act which he does upon the railroad; and if, in the exercise of vigilance, he knew, or should have seen, that this telltale was out of order, he cannot recover, even though the company did wrong.” This charge fails to instruct the jury that the plaintiff had the right to rely upon the performance by the defendant of the duty to maintain the telltale in order, but, *831■as the case successfully sustained the burdens imposed upon it by the charge, the point ceases to be material further than to show that the jury must have found the evidence amply sufficient upon the questions involved to sustain the action. There was no exception to the charge, and the judgment and order should be affirmed, with costs. All concur.