#### James R. Curran, Respondent, *v.*The Lake Champlain and Moriah Railroad Company, Appellant.

*Railroad*— master *and servant*— negligence — *injibry to irakeman.*

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered .in the Essex county clerk’s office on the 20th day of September, 1910, upon the verdict of a jury, and also from an order denying a motion to set aside the verdict and for a new trial..

Judgment and order reversed and new trial granted, with costs to appellant to abide event, on the ground that there was no negligence shown as against the defendant.

All concurred, except Kellogg and Betts, jj., dissenting, the latter in opinion.

Betts, J,

(dissenting): I dissent. The plaintiff was employed by the. defendant as a brakeman, and had been for several years. ..On the 14th of August, 1908, he was thrown from the rear car on which he was standing by *891the sudden stopping of a train without any notice by whistle or otherwise from the engineer that the train was to be stopped. The negligence claimed is the failure of the defendant’s engineer to give any signal of intention to stop the train. The action was tried as one to recover damages as a common-law action of negligence, supplemented by section 43a of the Railroad Law.* At the time in question the plaintiff was upon a ear known as a “jimmy car” or ore car of the defendant. Brakemen had to stand on the running board of jimmy cars; they could not get inside of them. He claimed that before the train left the railroad yard at Port Henry he was told by the conductor to get a link to put in place of a broken one that was on the rear car that he had control of, and a new pin at the Y, and insert them in the proper place to make connection of the ear from which the accident occurred with another car at the Y upon the defendant’s road. The train pulled out of Port Henry with the plaintiff as rear brakeman and started for MinevUle, about seven miles from Port Henry. The railroad track climbs up a mountain by means of various “ Y’s” on account of the steepness of the grade. The train upon which the plaintiff was rear brakeman was of such length that it could not all be put upon the Y at once, so a portion of the train, the front part of the train, was detached from the rear cars as they approached the Y and was taken in on the Y; the single passenger car attached to the train detached and left on the Y, and the remainder of the train that the engine took with it was taken up on the main line, as it is called, of the road, being another raise of the road. Then the engine returned to get the ears that had been left upon the first part or section of the main line, and upon the rear one of which was plaintiff in charge thereof. These cars were taken up upon the Y, and while waiting to start up on the other part of the main line, as it has been called in the testimony, plaintiff got down off his car and got a whole link or pin from somewhere near the track at the Y and got back upon the ear again. Then the engine started to take these cars up to connect with the other cars on the main line, where they had been left farther up the hill, intending to leave the passenger car which- was farthest in on the Y until after the cars upon one of which (the farthest from the engine) was the plaintiff were attached to the cars farther up the hill. In some manner in gétting in on the Y the passenger car became attached to the locomotive. The conductor was in the passenger car collecting fares. When the engineer started to back up the cars upon which (the farther one from the engine) was stationed the plaintiff, the engine of course brought the passenger car along with it. The conductor holloed to the engineer in substance to stop the train so that ,he could disconnect the passenger car. The engineer did so without blowing a whistle or giving any warning to those on the train that he was pushing up the hill that he was going to stop. The testimony was that the train had gone up the hill something like twenty-five feet when the *892engine suddenly stopped, the cars ran out the slack some ten to twenty feet so that each succeeding one was stopped with a jerk and the last one received the most severe jerk of all. The plaintiff’s testimony is that he, had taken out the broken link, thrown it away and put the new link in place and was With his left foot upon the running board of the forward jimmy car and his right foot down upon the bumpers, hanging hold of the ear with his left hand and reaching down with his right hand .with the intention of coupling the car that he was on to the rear car of that portion of the train that was farther up the hill from him; that he was in that exact position when the car stopped with a severe jerk and he was thrown from the car and received the injuries for which this action was brought. Hide 20 of the defendant, so far as introduced here, is as follows: “ Engine Steam Whistle Signals. One short blast, stop. Apply brakes. Two. short blasts, release brakes.” No steam whistle was sounded it is conceded at the time of 'or just before this accident. The plaintiff claims it should have been sounded and if it had been sounded he would have had a chance to secure himself upon the car and would not have been thrown off. The defendant’s testimony is in substance that' sometimes it is sounded in the Y and sometimes it is not. Also that there was no occasion for sounding it at this time as that required the application of the brakes and there was no occasion for applying brakes. The court submitted the case to the jury very clearly as to whether the failure to give some kind, of warning was negligent on the part of the defendant’s engineer and also as to whether it was contributory negligence on the part of the plaintiff to be in the position that he was in. The jury answering both, found a verdict- for the plaintiff, thus finding that the defendant was negligent in the manner complained of and that the plaintiff was not guilty of contributory negligence. A case quite similar in principle is *Jones*v. *New York Central & H. R. R. R. Co.*(134 App. Div. 40) where the conductor was standing on the platform of a dumping car and the engineer without any signal or direction from the conductor suddenly stopped the train, throwing the conductor off and injuring him. The jury found in favor of the plaintiff in that action which was set aside by the trial' court and a nonsuit granted which the Appellate Division reversed. *Breed v. Lehigh Valley R. R. Co.*(131 App. Div. 492) was an action tried as a common-law negligence action, and under section 42a of the Railroad Law the same as this one. The negligence was claimed to be that of the engineer of the train in starting his train too quickly when the signal to him was to start slowly; the plaintiff himself gave the signal to draw ahead slowly and the. engineer disregarded this signal and started so suddenly as to throw plaintiff off the end of the ear in the rear. The judgment entered upon a verdict in, favor of the plaintiff was affirmed by the Appellate Division. In *Inglese*v. *New York, New Haven & Hartford R. R. Co.*(133 App. Div. 198) the plaintiff was injured by being hurt in some way by the approach of one of defendant’s trains. The negligence relied on was the negligence of the foreman to give warning to the workmen of the defendant, of which the plaintiff was one, of the approach of the train by saying “Look out.” The court dismissed the *893complaint at the close of the plaintiff’s case .which was reversed by the Appellate Division. It was held that the question of the plaintiff’s contributory negligence was clearly for the jury. I think that the defendant’s negligence and the plaintiff’s freedom from contributory negligence were properly submitted to the jury. Five doctors were, examined during the trial upon the question of the extent of the plaintiff’s injury. The plaintiff claims and his doctors substantiate him that he was injured in such a manner that he had nearly lost control Of one of his legs; that the leg would not follow his will in moving his foot; as he moved the other foot it wobbled and would advance in a sort of a circle; that he could not on account of his condition work as a brakeman any more, nor could he work *in any*business which would require him to climb up a ladder. He was about twenty-three years old, married, in good health, and was getting $1.77 a day and had been employed by the defendant for six years at the time of his injury. He had spent $185 for medical and surgical assistance. The defendant’s physicians testified that his injuries were not serious and one or both of them that they thought he was faking in stating his physical condition. The testimony of one other witness was produced who claimed to have seen him rolling a barrel- of beer and that if he was in as poor physical condition as claimed he could not do such work. Just how this witness knew the plaintiff was rolling a barrel of beer instead of a beer barrel, was not disclosed by her testimony, as she was a considerable distance from the plaintiff when she saw this alleged action. The court very fully set forth to the jury the testimony of the doctors, calling particular attention to that of the defendant’s physicians, and all of the physicians were allowed to testify at great length as to what they considered his condition, as was also the plaintiff. There were some exceptions to the rulings of the court but I think none of them presented reversible error. I think that the verdict was not excessive and that the judgment should be affirmed, with costs.