Elizabeth Clancy, as Administratrix, etc., of Patrick Clancy, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant

Elizabeth Clancy, as Administratrix, etc., of Patrick Clancy, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant. Second Department October 16, 1908. Railroad — negligence — track foreman killed by tender running backwards — right of railroad to run train on left-hand track— contributory negligence — charge should be specific — evidence — party not bound by testimony of his witness. A railroad has a right to run its trains on the left-hand instead of the right-hand track in order to pass a freight train which is blocking the right-hand track, and in an action to recover for the death of a track foreman who was killed by such train it is error to allow the jury to find the defendant negligent in ■ running the train out of the station on the left-hand track. It is immaterial that it was started from the station on the left-hand track, if. it would have been obliged to cross to that track before striking the decedent. Such foreman, who was struck at night by the tender of an engine running backwards, was not guilty of contributory negligence as a matter of law if there was no headlight on the tender and his attention was distracted by the noise of a passing freight train. In an action founded on negligence the charge should inform the jury what concrete acts or omissions they may find to be negligent. A mere legal essay does not suffice. A jury or court is not bound to accept the evidence of a witness as true.as against the party calling him, and it is. error so to charge. Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of October, 1907, upon the verdict of a jury for $20,000, and also from an order entered in' said clerk’s office on the 21st day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes. Henry W. Taft [Arthur C. Patterson and William Greenough with him on the brief], for the appellant. Michael J. Tierney, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The defendant ran special fishing trains from its central station in Hew York City eastward to a station also within the city limits, called Bartow, and return, to carry persons who' went fishing in waters of Long Island Sound. The return trains were run out to Bartow empty from an intermediate place called Oak Point; -and as they came near Barstow station they crossed over-to the return track by a crossover, and then ran into the station. The engines that pulled them ran backwards, tender first, for the reason that there was no turntable at Bartow; and when they stopped at the station the engines would cut loose, cross over to the other track, run back. and cross over again to the track they came from and hitch on to the trains at the other end and haul them back into the' city. On this night there was a freight train in the way, between Oak Point and Bartow, and the return train did hot run out from Oak Point on. the right.hand track, as was the regular way, but crossed over and ran out on the other track in order to get by the freight train ; a thing constantly done in railroad operation to get by an obstruction ahead. This was done by written order of the superintendent in charge of • the moving of trains. The train ran over the plaintiff’s intestate and killed him as it was about two car lengths from Bartow station. It was running alongside the freight train at the time, which was struggling along upgrade, its engine laboring, and puffing, The deceased was track foreman of that same stretch of track, and it was his duty to spike the switch at the said crossover which the train would have passed over to get upon the return track if it had come out by the- right hand track. The defendant had the right to run the train out by the left hand track as it did; birt that does not matter, for if it had run it out on the right hand'track the case would_ be no different, for it would have crossed over to the other track before coming into Bartow station and been going along that track just as it was when it hit the deceased between the crossover and the station. . The deceased' cannot be skid to have been guilty of contributory negligence as matter of law, if there was no headlight on the tender that hit him, especially if the noise and distraction of the passing freight train be considered. On .the-other hand, there is no foundation for a question of the negligence of the defendant, unless whether it furnishéd a sufficient headlight or lantern for the tender to enable the deceased and other track employes to see the tender coming in the darkness, if it was so dark as to make such a light necessary; or unless the superintendent knowingly sent the train out backwards without such a light, for the action is brought under the employer’s liability act. If it furnished a light and it was not used, that would be the negligence of a fellow servant. There is evidence that there was no headlight or lantern on the tender, but that question was not submitted to the jury, and' the case seems not to have been tried on that theory. The jury were left free to find negligence from the fact of the train running ont to Bartow on the left hand track; and that was not permissible. In fact the charge did not inform the jury what act or omission they might find to be negligent, as a charge always has to. A mere legal essay does not suffice; a specific and concrete instruction as to the fact or facts on which, if found, negligence may be based, is requisite. . As the case is to be tried over, it is not amiss to say that the instruction to the jury at the defendant’s request that the plaintiff was bound by the testimony of the engineer of the train for the reason that it called and examined him as a witness, was erroneous. A jury or court is not obligep to accept the evidence of a witness as true against a party for the reason that he was that party’s witness. There is no such rule. The jury or court is free to discredit his evidence whoever called him. A trial is a search for the truth. A party is only bound by evidence which is found to be true, whether of his own witnesses or the other party’s witnesses. The judgment should be reversed. Woodward, Jenks, Hooker and Miller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.