I think that- this judgment should be reversed for errors of the trial court in refusing to charge as requested by the defendant. A brief statement to show the disputed questions of fact is necessary.
The plaintiff alleged in a complaint, verified by his guardian ad litem, that he was in the employ of the defendant as a brakeman and switchman, and that while attempting to board his train upon returning to it after turning a switch it was negligently started arid he was thrown finder the wheels. His story upon the trial, briefly stated, was that his train was due to. start for its day’s work from the Holban yard, near Jamaica, at five o’clock in the morning; that on the morning of May 18, 1907, he reported for work and was directed by the conductor to go with a fellow-brakeman to get some fuses, torches and oil; that while away, from the train to obey that instruction it left; that he and his fellow-workman then took a train for Valley Stream and walked from there to Far Roqkaway, a distance of eight, or nine miles, where he arrived between four and four-thirty in the afternoon, found his train and reported to the conductor, who told him to go to work. I quote from, his testimony : “ He told me to go back on my train. The train was then Standing still. , I spent about 20 to 25 minutes there talking with the conductor, and then walked back to the middle of the train, 1' sliould judge ten or fifteen cars back from the engine. Q. What did yon do when you got there ? A. The conductor says, ‘ All aboard.’ I put my left foot on the step, put my hand on the handle, and I was just getting on. The conductor gave him the signal; the train gave a lurch, and threw me off underneath, the wheel and I got my foot amputated.” The defendant’s version of the occurrence, supported by the testimony of four witnesses, is that the train left the *17Holban yard without the plaintiff, owing to the latter’s fault in not being at his post, that his place had been supplied by another brakeman who had joined the crew at Far Bockaway, and that he had not been seen by the conductor or the rest of the crew after leaving the Holban yard until the accident occurred, which resulted from his attempting to board the train while it was in motion. The defendant excepted to the refusal' of the trial court to charge each of the' following requests:. “I ask your Honor to charge if the conductor directed the plaintiff to resume his place and waited a reasonable length of time after such direction, he would then be justified in starting his train.” “ I ask your Honor to charge that- the conductor’s duty in this case did not require him to watch each trainman to see if he had gone aboard before starting' his train.”
Even upon the plaintiff’s version of the occurrence the jury were at liberty to find that the conductor was not negligent. The plaintiff was a middle brakeman. His work required him to be at the middle of the train. Brakemen have to be alert and look out for themselves. According .to his own account the plaintiff had nothing to do but to take his place on the train, and the conductor was not required to watch his movements. . The refusal to charge as requested could only be justified on the ground that the plaintiff’s story, if believed, required- a verdict in his favor, whereas the jury were at liberty to find the conductor free from negligence, even upon the plaintiff’s version of the accident. It is quite evident that the plaintiff loitered about after he was told to go to work, just as he had been loitering during the day.
The judgment and order should be reversed;
Woodward and Jenks, JJ., concurred; Burr, J., read for affirmance, with whom Rich, J., concurred.