I agree with the conclusion that the case should be reversed and sent back for a new trial.
The testimony of the experts as to the distance within which the train could have been stopped was clearly prejudicial. It *251presented to the minds of the jury answers to hypothetical questions not framed to meet the conditions under which the engineer worked, and which were no proper basis for a determination of the distance within which that train could have been stopped if the engineer did what' he testified he did. The experts were admittedly unfamiliar with this engine or any engine of this type and the questions did not embrace a consideration of the single brake flange, slippery condition of the rails and the plugging of the sander. The testimony of the engineer was entitled to credence unless shown to have been improbable or contradicted. He was the plaintiff’s witness and the burden of proof was on the plaintiff. He was not contradicted by affirmative proof as to the blowing of the whistle or as to his efforts to stop the train. The only tests of the truthfulness of his story presented to show the improbability of his having thrown on the emergency brake when he said he did, are the testimony of the experts as to the distance within which he ought to have stopped under such circumstances and the testimony of some of the witnesses that the shock usually incident to the use of the emergency brake was not felt. This is explained by the absence of sand and the slippery condition of the rails, which would also account for the distance the train traveled after hitting her. There was a question to go to the jury on the absence of shock but it was unfair to let the jury test the probability of the truthfulness of the engineer’s story by supplying the false guide of the expert testimony as to the distance within which a totally different engine could have been stopped. The prejudice which the defendant suffered by reason of that testimony is sufficient ground for reversal, standing alone.
The doubt which comes to my mind is in relation to the approval of the requested charges. I fear that there may be error in this. Take the first one: “ I will ask your Honor to charge that if the jury find that immediately upon discovering that this girl was on the track and not likely to get off in time, the engineer did sound his whistle and apply his brakes, he was not guilty of any wanton, or willful, or reckless act.”
When the engineer discovered this girl on the track it became his duty to exercise reasonable care under the circumstances to avoid a collision. (Feldman v. N. Y. C. & H. R. R. R. Co., 142 App. Div. 339; affd., 205 N. Y. 553; Bragg v. Central N. E. R. Co., 228 id. 54; Chrystal v. Troy & Boston R. R. Co., 105 id. 164.)
Lack of reasonable care after discovery of a person in peril amounts to recklessness. If this be true, then it is improper, it seems to me, to hold as a matter of law that the mere blowing of the whistle and putting on the brakes, without adding “in a *252reasonably prudent manner ” or without describing in detail what the engineer said he did, is erroneous, because it leaves out of consideration the manner in which the whistle was blown and in which the brakes were applied. A whistle might have been shrill and penetrating or otherwise. One short blast might not have been enough. Brakes might have been applied slowly and gradually in a manner which the jury might hold to have been negligent, or the emergency brakes might have been immediately applied. It is true that the engineer’s ■ testimony, if believed, showed satisfactorily, as I see it, that he did both of these things in a reasonably prudent manner but the question did not embrace that qualification, either by description or in general terms. The jury might have understood that counsel for the defendant meant to refer to the acts of the engineer as testified to by him or they might have understood that any whistle or any application of the brakes was sufficient if the other evidence in the case appealed to the jury and should lead them to believe that he had applied only his service brake. In sending this case back we ought to call attention to this weakness rather than to put the stamp of our approval upon this request to charge in hcec verija.
The second request to charge by defendant’s counsel was: “ I will ask your Honor to charge that the engineer was not bound to try to stop this train the instant that he saw the deceased upon the bridge, but that he had the right, in broad daylight, if bis train was perfectly visible and its approach apparently heard and known, to assume, at least in the first instance, that this girl would get off the track.”
While in an ordinary case of a trespasser upon a railroad track this would be the correct rule, it is questionable whether it applies to this case, not because she was a young girl, a thing which he could not know when he first saw her, but because she was upon a bridge with which he was perfectly familiar, over which ran a single track, with no walk for pedestrians at the side and which rendered it extremely difficult if not impossible to quickly step aside into safety as would be the ordinary case of a track walker. Such a request assumes that the person on the track could quickly step off the track into a place of safety. It assumes a condition upon which reasonable minds could differ here and I think it is dangerous to apply it to the facts of this case.
Cochrane, P. J., concurs.
Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event. The court disapproves of the finding that the defendant was guilty of negligence.