Martin Keogh was a freight conductor employed by the defendant in interstate commerce. While riding on some cars backing over a switch track a *Page 33 derailment occurred and Keogh was killed. This action was brought to recover damages for his death and resulted in a verdict for the plaintiff. The judgment entered on this verdict was unanimously affirmed by the Appellate Division.
In his charge to the jury the trial judge without objection stated that if there was no defect or insufficiency in the cars of the defendant or in its tracks, roadbed or equipment there could be no recovery. By the use of the word "equipment" he had reference to the details of the cars or of the tracks. Later he was asked to say and did say that there was no evidence in the case as to the condition of the cars from which the jury could find the defendant negligent. He thus eliminated any consideration of this source of complaint. There was left a possible defect in the track causing the accident. He was then asked to charge that if the jury found that there were no defects in the track at the place where they found the derailment occurred their verdict must be for the defendant. This request was refused and the defendant excepted.
Clearly, this was error. If the jury could only find a verdict for the plaintiff in case there were defects in the cars or a defect in the track; if as a matter of law there was no defect in the cars, then if they found that the track was not defective wherever the derailment might have occurred a verdict in favor of the plaintiff would not be justified.
The judgment appealed from, therefore, must be reversed and a new trial granted, with costs in all courts to abide the event.