The defendant, by stipulation, has waived all exceptions appearing in the record except the exceptions taken to the refusal to dismiss the ^complaint, both at the close of plaintiff’s case and the close of the whole case, and to the charge of the court and the refusals to charge otherwise. The exceptions so remaining raise the question whether, under the circumstances of the case, there is any liability whatever on the part of the defendant.
The action is for a personal injury alleged to have been sustained in consequence of the negligence of the defendant In every such case the plaintiff must prove that he was wholly free from contributory negligence on his part, and that the injury complained of was the result of defendant’s negligence exclusive of any other primary cause.
Upon the question of plaintiff’s contributory negligence the case, was clearly one for the jury upon the evidence, and the instructions given to the jury upon this point carefully guarded every right which the defendant had. This branch of the case is so free from doubt that discussion in detail is wholly unnecessary.
*708But the charge of negligence made against the defendant presents a grave question. At the time of the injury, which occurred at about a quarter before six in the afternoon of the 20th of December, 1888, at the Harlem River freight yard of the defendant, the plaintiff had been employed as a car coupler and brakeman in said yard for only about two weeks. The plaintiff then and there received an order by means of a signal to make a cut (•i. e., to uncouple a car from other cars) upon a train of cars which was being moved in the yard. The plaintiff was then standing upon the ground and the cars were moving so swiftly that he was unable to make the cut as they passed him. He therefore ran after them in order to get hold of a handle attached to one of the cars, and in this way to get up on the platform of the car. He evidently intended to do the uncoupling while standing on the platform of the car, since he could not do it safely from the ground. It had become dark, and the plaintiff held a lantern in his left hand out in front of him and about on a height with his shoulder, so that he could see the handle by which he intended to raise himself up to the platform. He had his right hand up ready to catch the handle, and just as he was in the act of grasping it, he came into-collision with the handle of a switchstand. The handle ran into his leg, and he was seriously injured. The ¡switchstand was not in use at the time and useless in the condition it was.« The defendant at the trial admitted that the rails to which the switch was attached were spiked so that the switch could not be used. As to the length of time during which the switchstand had not been used, the testimony of witnesses varied from four weeks to six months. The Yard covered many acres of ground, and in it were upwards of sixteen miles of railroad tracks. There were also quite a number of switchstands, some of which were at the time in question lighted, while others were not. The switch stand in controversy was not lighted, and plaintiff testified that he did not know of its existence. The trial judge charged, at defendant’s -request, that the defendant did not owe to the plaintiff the duty to light the switch in question or to take him to the switch stand and point it out^ to him. The only thing then left upon which negligence could be predicated was the maintenance of the switchstand in the position it was at the-time with its handle projecting and the rails spiked, and the question was submitted to the jury as one of fact under all the circumstances of the case. This disposition of the question was in accordance with the decisions in Plank v. N. Y. Central & Hudson R. R. Co.,. 60 N. Y., 607, and Fredenburg v. The Northern Central Railway Co.,. 114 id., 582; 24 N. Y. State Rep., 550.
That being so, the refusal to charge that, as matter of law, the defendant had the right to maintain the switch in question in the position in which it was at the time of the accident, and the refusal to charge that, as matter of law, the defendant did not owe to the plaintiff any duty to remove the switchstand in question, did not constitute error. Nor was it error to refuse to dismiss the complaint.
The exception remaining available to the defendant under the *709stipulation referred to having been found to be untenable, the judgment and order should be affirmed, with costs.
Truax, J., concurs.