This is an action to recover damages for personal injuries which the plaintiff claims he sustained through the negligence of the defendant. The plaintiff was employed to work in the yard of the defendant at Forty-second street. The testimony showed that, at the time of the accident, the plaintiff was not working. Some of the witnesses testified that he was standing, leaning on his shovel, so as to permit the engine to pass. Other witnesses testified that he was sitting on a board over the “third rail,” which was very close to the track over which the engine was passing. 'All of the witnesses agreed that the plaintiff was very close to the engine. While passing the plaintiff, the engine emitted steam and hot water which burned the plaintiff on the back. There was no proof that the steam and hot water discharged were excessive in amount, or that the discharge was made other than in the usual and ordinary manner, or that the person in charge of the engine saw the plaintiff, or that he could have seen him in the exercise; of ordinary care. The testimony did not establish the plaintiff’s freedom from contributory negligence, nor did it prove the negligence of the defendant. The motion to dismiss the complaint should have been granted, and the judgment recovered should be reversed.
'Present: Gildersleeve, Seabury and Platzek, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.