McLennan, P. J.:
The action has been twice tried. Hpon the first trial a nonsuit was granted at the close of plaintiff’s case. Plaintiff made a motion for a n.ew trial which was directed to be heard at the Appellate Division in the first instance. • This court unanimously overruled [532]*532the plaintiff’s, exceptions and denied .his motion for a new trial (100 App. Div. 513).
Thereafter permission was given by a member of the Court of Appeals to appeal from our decision to that court, and upon such review .the decision of this court was reversed and a new trial ordered (185 N. Y. 276), Judge Edward T. Bartlett writing the opinion of the court. Upon such new trial the plaintiff recovered the verdict upon which the judgment' -now appealed from was entered. A.careful examination of the record in-this case and in the former appeal'shows that there is practically no difference in the two records so far as the plaintiff’s'c'ase is concerned, and, therefore, it 'follows that under the decision of the Court of Appeals the plaintiff has established a cause of action, unless the evidence introduced by the defendant is of such a character as to establish a defense to the cause of action proved by the plaintiff. ks matter of law, or else of such a character as to make the verdict of the jury contrary to or against the-weight of the evidence. "We think such is'not'the effect of the evidence offered by .the defendant, and, therefore, that the judgment- appealed from should be affirmed.
The material facts are not very much in dispute. The plaintiff at the time in question was employed by -the defendant as a hoer'of. ashes from engines. It appears that in the yard of the. defendant when it .was desired to clean an engine a hostler would run the engine onto a track, there being at the time no ashpits in the yard; and a hoer would then be ordered to go under the engine.- The hostler-would dump or shake the aslies into the ashpan below, and it was the duty of the hoer to hoe them out onto the track, he being ■ under the engine upon his knees. It was the custom which had ■ . .been established between the hoer and the hostler, that when the hostler had finished shaking down the ashes into the ashpan he would ring the bell to inform the.hoer of that fact; that w*hen the hoer had removed all the ashes from the ashpan he would crawl out from under the engine, would-then say to the hostler, “All right,” which indicated that he had gotten out from under the . engine, or would show himself to the hostler at the cab, and the hostler was then free to move the engine as lie. desired. This had been the manner or custom of performing this work during all the time the plaintiff was in defendant’s employ.
[533]*533On the evening in question, it being then somewhat dark, and there being several engines in the yard and about the engine in question, which were making more or less noise, the plaintiff went under an engine, which was in charge of a hostler by the name of Lyon, to rake out the ashes in the ordinary-way. . Lyon gave the signal indicating- that he had dumped the engine and shaken the' ashes'into the ashpan, and after the plaintiff'had raked out the ashes he started to crawl out between the wheels of the engine, and while thus getting out Lyon started the engine and the wheel ran over the plaintiff’s leg, injuring it in such manner that it had' to be amputated between the ankle and the knee. The plaintiff at the. time in question gave no signal to the hostler that he had gotten out from under the engine; he did not say, “All right,” and did not show himself at the cab.
These are the. facts in a general way, and, so far as important to note, which were established by the plaintiff upon this trial and which were, proven upon the previous trial, the evidence in the two records being practically identical. ' •
The Court of Appeals said, upon the appeal from the former decision (p. 284) : '
“ In the. case before us we have a state of facts differing in many particulars from those presented in any. of the cases cited. It is obvious that the physical conditions surrounding the plaintiff when engaged in his work exposed him to great peril.
“As before jiointed out, the mode of procedure adopted by the men was that when all the ashes were shaken down the hostler would announce the fact verbally or by ringing the bell of the .engine; thereupon the lioer, after finishing his work, would remove his tools and himself to a place of safety and announce the'fact to the hostler by calling out, ‘All right,’ or exhibiting himself in 'person.
“ In view of the great peril surrounding this work, a rule promul- ' gated by the company might well'be printed among its general rules, requiring the hoer to reach a place of safety in sight of the hostler. The confusion and noise existing in a railroad yard where engines and cars are in almost constant motion and steam escaping to a greater or less extent, renders
“W-e are of opinion that it was a question of fact for the jury ;as to'thé duty of the defendant to have promulgated a written rule in view of the dangerous surroundings of the work of hoers of ashes and cinders underneath engines, and whether its failure to do so was negligence, rendering it liable to the plaintiff- in damages for the injuries he sustained:”
' The language quoted, which practically embodies the decision ■ of the court, applies with equal forcé to the situation and fact's as described by plaintiff’s witnesses upon this trial. The defendant, however, called a witness, George Colburn, who was engine dispatcher and who was the superior officer of the hostler, and he testified in answer to the question : “ Tell us wliat instructions, if any, you gave to the hostlers with reference to cleaning out locomotives when the hoers were underneath? A. The instructions- given were a general instruction to the men in that employment. The hostlers were to satisfy themselves, that the engine hoers were out from under the engine, and that they knew it before they start the engine. I gave such instructions to the hostlers.”
: And it also appeared by testimony offered on behalf of the defendant that a practice had been adopted of signaling between the hoer and the hostler practically., as testified to by the witnesses •called on behalf of the plaintiff. Therels no evidence on the part of the defendant tending to' show that any particular rule had been promulgated as to the manner.in which the hostler should satisfy himself that the men were- out from under the"locomotive and safé, but the men' of their own accord adopted the practice or custom above indicated. It does not seem to me that the fact that the engine dispatcher gave tile instructions which he testifies he did to' the hostlers meets the criticism made- by Judge Bartlett in liis opinion delivered upon the former appeal. The effect of the holding in that case is that the defendant was required to have promulgated a written rule which should emphasize, as it were,.the importance of seeing. to it that no one was under the engine when started. I fail to see'how the evidence-of Colburn changes in the (slightest degree the case from what it was upon the former appeal.
[535]*535Lyon, the hostler, who was called as a witness by the defendant, .
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McLennan, P. J.:
The action has been twice tried. Hpon the first trial a nonsuit was granted at the close of plaintiff’s case. Plaintiff made a motion for a n.ew trial which was directed to be heard at the Appellate Division in the first instance. • This court unanimously overruled [532]*532the plaintiff’s, exceptions and denied .his motion for a new trial (100 App. Div. 513).
Thereafter permission was given by a member of the Court of Appeals to appeal from our decision to that court, and upon such review .the decision of this court was reversed and a new trial ordered (185 N. Y. 276), Judge Edward T. Bartlett writing the opinion of the court. Upon such new trial the plaintiff recovered the verdict upon which the judgment' -now appealed from was entered. A.careful examination of the record in-this case and in the former appeal'shows that there is practically no difference in the two records so far as the plaintiff’s'c'ase is concerned, and, therefore, it 'follows that under the decision of the Court of Appeals the plaintiff has established a cause of action, unless the evidence introduced by the defendant is of such a character as to establish a defense to the cause of action proved by the plaintiff. ks matter of law, or else of such a character as to make the verdict of the jury contrary to or against the-weight of the evidence. "We think such is'not'the effect of the evidence offered by .the defendant, and, therefore, that the judgment- appealed from should be affirmed.
The material facts are not very much in dispute. The plaintiff at the time in question was employed by -the defendant as a hoer'of. ashes from engines. It appears that in the yard of the. defendant when it .was desired to clean an engine a hostler would run the engine onto a track, there being at the time no ashpits in the yard; and a hoer would then be ordered to go under the engine.- The hostler-would dump or shake the aslies into the ashpan below, and it was the duty of the hoer to hoe them out onto the track, he being ■ under the engine upon his knees. It was the custom which had ■ . .been established between the hoer and the hostler, that when the hostler had finished shaking down the ashes into the ashpan he would ring the bell to inform the.hoer of that fact; that w*hen the hoer had removed all the ashes from the ashpan he would crawl out from under the engine, would-then say to the hostler, “All right,” which indicated that he had gotten out from under the . engine, or would show himself to the hostler at the cab, and the hostler was then free to move the engine as lie. desired. This had been the manner or custom of performing this work during all the time the plaintiff was in defendant’s employ.
[533]*533On the evening in question, it being then somewhat dark, and there being several engines in the yard and about the engine in question, which were making more or less noise, the plaintiff went under an engine, which was in charge of a hostler by the name of Lyon, to rake out the ashes in the ordinary-way. . Lyon gave the signal indicating- that he had dumped the engine and shaken the' ashes'into the ashpan, and after the plaintiff'had raked out the ashes he started to crawl out between the wheels of the engine, and while thus getting out Lyon started the engine and the wheel ran over the plaintiff’s leg, injuring it in such manner that it had' to be amputated between the ankle and the knee. The plaintiff at the. time in question gave no signal to the hostler that he had gotten out from under the engine; he did not say, “All right,” and did not show himself at the cab.
These are the. facts in a general way, and, so far as important to note, which were established by the plaintiff upon this trial and which were, proven upon the previous trial, the evidence in the two records being practically identical. ' •
The Court of Appeals said, upon the appeal from the former decision (p. 284) : '
“ In the. case before us we have a state of facts differing in many particulars from those presented in any. of the cases cited. It is obvious that the physical conditions surrounding the plaintiff when engaged in his work exposed him to great peril.
“As before jiointed out, the mode of procedure adopted by the men was that when all the ashes were shaken down the hostler would announce the fact verbally or by ringing the bell of the .engine; thereupon the lioer, after finishing his work, would remove his tools and himself to a place of safety and announce the'fact to the hostler by calling out, ‘All right,’ or exhibiting himself in 'person.
“ In view of the great peril surrounding this work, a rule promul- ' gated by the company might well'be printed among its general rules, requiring the hoer to reach a place of safety in sight of the hostler. The confusion and noise existing in a railroad yard where engines and cars are in almost constant motion and steam escaping to a greater or less extent, renders
“W-e are of opinion that it was a question of fact for the jury ;as to'thé duty of the defendant to have promulgated a written rule in view of the dangerous surroundings of the work of hoers of ashes and cinders underneath engines, and whether its failure to do so was negligence, rendering it liable to the plaintiff- in damages for the injuries he sustained:”
' The language quoted, which practically embodies the decision ■ of the court, applies with equal forcé to the situation and fact's as described by plaintiff’s witnesses upon this trial. The defendant, however, called a witness, George Colburn, who was engine dispatcher and who was the superior officer of the hostler, and he testified in answer to the question : “ Tell us wliat instructions, if any, you gave to the hostlers with reference to cleaning out locomotives when the hoers were underneath? A. The instructions- given were a general instruction to the men in that employment. The hostlers were to satisfy themselves, that the engine hoers were out from under the engine, and that they knew it before they start the engine. I gave such instructions to the hostlers.”
: And it also appeared by testimony offered on behalf of the defendant that a practice had been adopted of signaling between the hoer and the hostler practically., as testified to by the witnesses •called on behalf of the plaintiff. Therels no evidence on the part of the defendant tending to' show that any particular rule had been promulgated as to the manner.in which the hostler should satisfy himself that the men were- out from under the"locomotive and safé, but the men' of their own accord adopted the practice or custom above indicated. It does not seem to me that the fact that the engine dispatcher gave tile instructions which he testifies he did to' the hostlers meets the criticism made- by Judge Bartlett in liis opinion delivered upon the former appeal. The effect of the holding in that case is that the defendant was required to have promulgated a written rule which should emphasize, as it were,.the importance of seeing. to it that no one was under the engine when started. I fail to see'how the evidence-of Colburn changes in the (slightest degree the case from what it was upon the former appeal.
[535]*535Lyon, the hostler, who was called as a witness by the defendant, . also testified in substance that he knew the plaintiff was under the envine or had not come out from under it at the time that the 0 engine was started, and in effect that the engine was started by him by mistake and because he released the air brake when he ought not to have done so. The testimony of Lyon upon this question, is not entirely satisfactory and convincing. He was in defendant’s employ at the time of the-trial and he was directly responsible for the accident, and we think the jury had a. right to disbelieve his evidence in that regard. It appeared that he was in a hurry to get the engine cleaned out, and it is quite consistent with all the circumstances that he moved the engine, for the moment forgetting that the plaintiff was underneath. But again, if a rule-had been adopted by authority of the defendant requiring the hostler to do some particular act to ascertain whether - the hoer was under the engine before starting the same, he would be much less liable to interfere with the engine in such manner as that by any possibility it could be moved until he had performed such act specified in such rule. The promulgation of; such rule would tend to make the hostler more careful in the performance of a duty which was attended with so much danger to ■ a coemployee.
1 conclude upon this branch of the case that the question of defendant’s negligence and of plaintiff’s freedom from contributory negligence were for the jury (McCoy v. N. Y. C. & H. R. R. R. Co., 185 N. Y., supra), and that it .cannot be said that their verdict in plaintiff’s favor upon those issues is contrary to or against the weight of the evidence. -
It is also urged that the verdict is excessive, and that for that reason a new trial should be granted. An extended discussion of the proposition cannot be useful because the facts are plain and undisputed. At the time of the accident plaintiff was forty-five years of age;. his health prior thereto had' always been good'; he was able to do all kinds of manual labor; he weighed about 165 pounds; his leg' was amputated half way between the foot and the knee; he was at the hospital seven weeks; he says that he suffered great pain; that he had many bed sores. He says that after the stump.of the leg healed it continued to cause him great pain, and so continues up to the present time, and that he had difficulty in wearing an arti[536]*536ficial limb. It does not seem to me under such circumstances that it can be said that the verdict is excessive. . ,
It follows that the judgment'and order appealed from should be affirmed, with costs.
All concurred, except Williams, J'., who dissented on the ground that it sufficiently appears that.' Lyon, the hostler, knew that the plaintiff was under the engine at the time he started it, which he did by accident; Bobsox, J., not sittingr
Judgment and order affirmed, with costs.
Sie.