I concur in the reversal on the ground that the proof does not satisfactorily establish that there was an unvarying practice or custom by the defendant’s trainmen to set the brakes on the rear car of each string left at the defendant’s elevatcuv
*35If that had been the practice uniformly in vogue at the time of the agreement with Sheehan, and continued ever since, I am satisfied that the defendant would be liable for damages accruing from its omission to keep up this method of holding the cars. The jury were justified in holding the plaintiff free from negligence. (Kettle v. Turl, 162 N. Y. 255.)
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event. -