In June, 1909, the Erie Railroad Company was engaged in raising its roadbed and putting in a *Page 351 side track in Livingston county on its line between the cities of Hornell and Buffalo. For the purpose of doing that work, dirt and gravel were brought by means of a gravel train and deposited between the two main tracks of said railroad. The plaintiff was employed as a brakeman on such gravel train. He had been employed as a brakeman by the defendant prior to June, 1909, for a time aggregating about fourteen months. On the morning of June 15 such gravel train stood on the east-bound track at a point south of a highway crossing known as Hunt's Crossing. One Childs was the conductor on the train and he directed the plaintiff to go back on the track toward Buffalo and flag approaching trains. A rule of the defendant requires: "When a flagman is sent out to signal an approaching train he is forbidden to stop on a curve or behind any obstruction but is required to endeavor to reach a position where he can be clearly seen from the approaching train for at least one-quarter of a mile." The plaintiff testified in substance that it was necessary in obedience to that rule to go back from the gravel train about one-half a mile and that he started back as directed by the conductor. When he reached Hunt's Crossing, which was about seventy-five yards northerly of the gravel train, a freight train came along on the west-bound track proceeding in the direction that he was going. The freight train consisted of two engines and about fifty freight cars and was going about eight miles an hour. For the purpose of obtaining a ride on such train to the place where he had to go, he watched the cars as they passed to select one easy to board. About the middle of the train he saw a car with a low step and he grabbed an iron on the side of the car known as a "handhold" with his left hand and another similar handhold higher up on the car with his right hand and at the same time put first his left foot and then his right foot on the iron step hanging from the bottom of the car and commenced to pull himself to an upright position along *Page 352 the side of the car. He further testified that as he did so one end of the upper handhold came loose and he was thereby unable to maintain his hold and fell upon the dirt and gravel between the tracks. His left foot was crushed under the wheels of the car so that it had to be amputated. The defendant denied that there was any defect in the handhold or that it had become loose.
According to the testimony of the plaintiff it was the custom of defendant's brakemen when ordered to go back to flag trains to ride on freight cars when they happened at such time to be going in the direction that the brakeman was required to go. He further testified that he had so boarded cars many times when the conductor of his train was present and saw him, or could have seen him. He further testified that he had seen other brakemen so ride on freight cars when they were going back to flag trains.
Another brakeman who had worked for the defendant for more than three years testified that when he was required to go back to flag trains and another train came along going in his direction it was his custom to board it provided it was not going more than eight or ten miles an hour and that he had seen other brakemen so board a train "a good many times." He further testified that he had seen Conductor Childs board an engine when going in the direction that he wanted to go.
No evidence was offered by the defendant to contradict the evidence presented by the plaintiff in regard to the custom of brakemen in boarding moving cars and the defendant had no express rule against such practice. If with the approval of the defendant, express or implied, it was the custom of its brakemen in going back to flag approaching trains to jump upon freight cars, as the plaintiff did in this case, and ride thereon, when a train going in the same direction happened along at the time, it was for the jury to say whether such act was negligence on his part under all of the circumstances shown *Page 353 at the trial. (Whittaker v. N.Y.C. H.R.R.R. Co., 153 App. Div. 934; affirmed, 209 N.Y. 511; Curran v. Lake Champlain M.R.R. Co., 211 N.Y. 60; Sprong v. B. A.R.R. Co., 58 N.Y. 56;Muhlens v. Obermeyer Liebmann, 83 App. Div. 88;Muller v. Oakes Mfg. Co., 113 App. Div. 689.) The question of the plaintiff's contributory negligence in this case was for the jury.
It was also a question of fact under section 64 of the Railroad Law (Cons. Laws, ch. 49; Laws of 1910, chapter 481, formerly § 42-a, added by Laws of 1906, chapter 857) as to the defendant's negligence. That section of the Railroad Law, so far as material, is as follows: "* * * If an employee, engaged in the service of any such railroad corporation, * * * shall receive any injury by reason of any defect in the condition of the ways, works, machinery, plant, tools or implements, or of any car, train, locomotive or attachment thereto belonging, owned or operated, or being run and operated by such corporation * * * when such defect could have been discovered by such corporation * * * by reasonable and proper care, tests or inspection, such corporation * * * shall be deemed to have had knowledge of such defect before and at the time such injury is sustained; and when the fact of such defect shall be proved upon the trial of any action in the courts of this state, brought by such employee or his legal representatives, against any such railroad corporation * * * on account of such injury so received, the same shall be primafacie evidence of negligence on the part of such corporation. * * *."
That section is applicable to this case, and when it is applicable it should have a construction liberal and commensurate with its purpose. (Utess v. Erie Railroad Co., 204 N.Y. 324.)
Proof of the defect is not conclusive evidence against the corporation but the presumption should be taken with all the other proof in the action, and when upon all of the evidence it appears that the defect could have *Page 354 been discovered by the corporation, by reasonable and proper care or inspection, the corporation is liable for damages by reason of the injury. (Whittaker v. N.Y.C. H.R.R.R. Co., supra;Larson v. Nassau El. R.R. Co., 165 App. Div. 887.)
The trial justice in his main charge left the questions of fact to the jury. In doing so, among other things, he said: "You will have in mind what the duties of the plaintiff were, what he was expected to do and how necessary it was to reach his destination for the purpose of performing his service as flagman, whether or not those duties, and those things that were expected of him, were of such a character, that you can say, as reasonably prudent men, that the plaintiff did, under those circumstances, exercise prudence, and care, and reason, and sense, in undertaking to board the train."
Just before the jury retired counsel for the defendant asked the court to charge as follows: "I ask your honor to charge the jury that if the plaintiff was not required in the discharge of his duties to the defendant, to board such train he cannot recover." The court so charged and counsel for the plaintiff excepted. This charge supplementing the charge already made was clearly erroneous as it is not claimed that the plaintiff was required to board the freight train as he states. The plaintiff's claim is that in view of the practices of the defendant's brakemen, it was not negligence as a matter of law for him to so board the train. The charge that the plaintiff could not recover unless the jury found that he was required in the discharge of his duties to board the train was in effect a direction to the jury to find in favor of the defendant.
The judgment should be reversed and a new trial granted, with costs to abide the event.