Ronconi

This is an appeal from a judgment in favor of the plaintiff and also from an order denying a new trial in an action for damages arising out of injuries sustained by the plaintiff as one of the defendant’s employees while engaged in the operation of a handcar upon its railroad line.

The handcar in question was one of regular standard make equipped with wooden handles which were used by the men in propelling the car. At the time of the accident which caused his injuries the plaintiff was standing on the front end of the car facing backward, and was engaging in “pumping” or pulling upon one of the handles used in operating the car, when said handle broke, and he fell backward in front of the car, which ran over him and seriously and permanently injured him.

The evidence is strongly conflicting as to the condition of the handle at the time of the accident. The appellant does not question its sufficiency, but rests his appeal upon certain alleged errors in the instructions of the court to the jury.

The first instruction assailed in the briefs of counsel for appellant is one which reads as follows: “You are further instructed that the law does not permit an employer to take any…