(dissenting). The plaintiff, while in the employ of a contracting company, at the time of the accident was placing a wooden brace upon a fence that ran parallel to and about thirty inches east from the north-bound track of defendant’s road on Broadway. He worked with his back toward the car track and, while in this position, was struck by the side of a north-bound car after a portion of the *204car had passed him. According to his own testimony he was familiar with the passing of the cars at the point in question and knew that he was in a dangerous position, but there is no evidence that he exercised any care to guard against the danger. His testimony does not show that he either looked or listened for the approaching car. In answer to the question: “ You did not look at all unless you heard it?” he answered “Ho, sir.” In answer to the question: “ Did you look, or didn’t you ? ” he answered “ I didn’t look, because if I looked and I saw it I would not stand there. I relied solely on the motorman giving me warning,” etc., etc. He also testified that he did not listen for the car because he did not hear it coming, that he was the only man that -got hurt and that everybody else got out of the way. There was not, therefore, under all the circumstances sufficient evidence upon which his freedom from contributory, negligence could be found.
But even if it" be assumed that the case was one for the jury, there was error in the charge. Defendant’s counsel asked the court to charge the jury that if the plaintiff was working in a place known to be dangerous to him he was required to keep his senses alert and to be vigilant to look out for cars and avoid them at the time of their passage. This the court declined to charge and, in place thereof, charged that the plaintiff was bound to exercise that care and diligence that a careful and prudent man would exercise under the circumstances similar to the ones that he was working under at that moment. As there are facts to support-the request and the point involved in it had not been covered by anything that preceded it, the refusal to charge as requested constituted reversible error within the rule laid down in Lyons v. Avis, 5 App. Div. 193. The cases of Dipaolo v. Third Ave. R. R. Co., 55 App. Div. 566, and Bengivenga v. Brooklyn Heights R. R. Co., 48 id. 515, do not apply. In the first of these cases it appeared that the plaintiff, as a street sweeper in the employ of the city, had been working in and about defendant’s tracks for some two years arid that it had been the custom of the motormen to sound a gong as cars wtere approaching street sweepers on *205the track. In the second case the plaintiff was struck while placing a shovel of hot asphalt between the rails of the track. Under the peculiar circumstances of the case it was said: u The defendant was chargeable with notice of the fact, both by its contract to repair the street and its actual condition, that workmen were upon the track at this point, and were required to be in order that the work might proceed * * *. As the prosecution of the work required that the asphalt should be deposited while hot, it is. quite evident that the operation of the car was to be had with regard to the plaintiff’s being between the rails of the track; and we think that the plaintiff might rely upon the presumption that the operator of the car would stop the same when it reached the point where he was upon the, road,” etc.
The case at bar is entirely different. Plaintiff’s work was not done upon or between the tracks but thirty inches away from them. He had sufficient space upon which to remain in safety if he straightened himself up. In fact a part of the ear had passed him before he was struck. Ho custom was established pursuant to which he might have relied exclusively upon a warning to be given to him by defendant’s servants, nor was" it made to appear that the particular work upon which he was engaged and in which in no way concerned the defendant, had progressed for such a length of time that he could claim that the defendant should have taken notice of it and regulated the running of the car with reference to it and thus absolved him from the duty of looking out for himself.
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment affirmed, with costs, ,