68 N.J.L. 605 | N.J. | 1902
The plaintiff was a brakeman in the employ of the defendant company, and was injured, in the yard at Hampton Junction, by being squeezed and rolled between a car of a moving mixed coal and freight train and a freight car on an adjoining track. His place of duty was upon the cars of the moving train. He claims that his duty, at the time he was injured, required him to get down.from the side of the moving train for the purpose of getting off to throw a switch, so as to take out of the train three loaded cars and qilaee them on a siding. He alone testifies as to the intention to take these three cars out of the train and place them on the siding. To the contrary of this is the testimony of the train conductor, of the head brakeman, of the engineer, of a brakeman who was put in the plaintiff’s place after he was injured, of a brakeman on the drill engine that made up the. train, and of the yardmaster, all of whom testify that no cars were, or were to be, taken out of the train to be put upon a siding.
The clear weight of the evidence is that if the plaintiff was injured as he testifies, he was, at the time of the injury, in a place where his duties did not call him, and was injured .through his own negligence.
The rule to show cause should be made absolute.
