1. The plaintiff’s contract of employment with the Pullman Company enured to the benefit of the defendant; and the agreement to indemnify his employer contained therein constituted a defense to this action unless the plaintiff’s signature was obtained fraudulently. This was taken for granted at the trial and the judge so instructed the jury. The evidence in favor of the plaintiff on this issue of fraud was, that after he had worked two hours he was called into the office of Ahearn the general foreman of the Pullman Company and the paper was passed to him for his signature. The plaintiff further testified as follows: “ I picked it up to see what it was. ‘ Oh,’ Ahearn says, ‘ lay it down. ’ ‘ Sign your name to that,’ he said, ‘ it is an application for work and that is all I have to say about it.’ He said the paper was only an application for work and nothing more. When I started to read it, he slapped it down on the desk, that I was supposed to sign my name to it. He told me to sign my name to it and go back to work. ... I thought I was signing the application under which I was going to work.” This evidence, although contradicted, entitled the plaintiff to go to the jury on his claim that the release was pro*453cured by fraudulent misrepresentations and concealment of its contents and consequently not binding upon Mm. Bliss v. New York Central & Hudson River Railroad, 160 Mass. 447. Larsson v. Metropolitan Stock Exchange, 200 Mass. 367.
2. There was evidence of the plaintiff’s due care. The jury would be warranted in finding that he had just filled with water the rear tank on the forward car, and that when he was bending over to pull out the hose, an engine with a baggage car attached to it came from behind him and bumped violently against the car on the top of which he was standing; that no bell was rung or other signal given of the approach of the engine; that this train on which he was when injured usually arrived in Boston at half past three in the afternoon, and oftentimes was left standing on tMs main track over night, before being switched over on another track. There was evidence that it was customary for all conductors of switching crews to investigate whether any men were working on the tops of cars that were about to be moved, and to warn such men to get off, before giving the signal to couple on an engine. The plaintiff testified that before the day of this accident the conductor always notified him to get down when they were about to shift the car upon which he was working, and that no such warning was given at tMs time. He also testified that the ladder by wMch he mounted was standing at the forward end of the car, where the conductor presumably could see it. We cannot say, as matter of law, that the plaintiff was careless in not constantly interrupting Ms work to watch for the approach of an engine, and in relying upon the customary warning. Meadowcroft v. New York, New Haven, & Hartford Railroad, 193 Mass. 249. Hines v. Stanley G. I. Electric Manuf. Co. 199 Mass. 522.
3. The testimony of Joyce and Burke was rightly admitted. It tended to prove a custom to give warmng to men who were working on top of cars, before a shifting engine was attached. Rafferty v. Nawn, 182 Mass. 503. Hines v. Stanley G. I. Electric Manuf. Co., ubi supra.
4. At the close of the charge the defendant requested the court to give the additional instruction numbered 12. In view of the plaintiff’s argument something might well have been said to the jury on the subject of absent witnesses, but the instruction could not properly be given in the terms requested. It was for the jury *454and not for the court to decide what if any inference should be drawn, and against which party, from the failure to produce as a witness the man who wrote the statements of the witnesses Joyce and Burke. Harriman v. Reading & Lowell Street Railway, 173 Mass. 28.
The foregoing disposes of all the questions raised by the defendant’s exceptions and insisted upon in this court.
Exceptions overruled.