#### John Muhr, Appellant, *against*The Mayor, Aldermen, and Commonalty of the City of New York, Respondents.

(Decided June 4th, 1888.)

While plaintiff was crossing a public drawbridge, over Harlem River in the City of New York, about nine o’clock in the evening, and when he was on the draw within fifteen or twenty feet of that end of it toward which he was walking, the signal to open the draw was given, the gates on the stationary parts of the bridge at both ends of the draw were closed, and the draw began to move; but plaintiff, paying no attention to the warning signal or to the shouts of the police officer on the bridge, and not noticing that the gates were closed and the draw was in motion, stepped off the further end of the draw, fell into the river, and was injured. The night was clear, the bridge was well lighted, and plaintiff knew that it might be opened at any moment. He could have remained in safety on the draw until it was closed. *Held,*in an action by him against the city, that he was guilty of negligence; that there was no negligence on the part of the city in not having gates at the ends of the draw; and that the court properly directed a verdict for defendant.

Appeal from a judgment of this court entered upon the verdict of a jury rendered by direction of the court.

The facts are stated in the opinion.

*Louis J.*Grant, for appellant.

*David J.*Dean, for respondent.

*13Bookstaver, J.

On the argument it was admitted, by the counsel on both sides, that there was no conflict of evidence on any material point in the case.

On the 15th of January, 1887, at about 9 o’clock in the evening, the plaintiff was crossing the Harlem Bridge, going northward to his home in Mott Haven. While the plaintiff was on the draw, the signal was given to open the bridge, and the gates on the stationary part of the bridge at both ends of the draw were closed and the draw began to move. The plaintiff was then within 15 or 20 feet of the north end of the draw—he says, walking fast; the defendants’ witnesses say, running, to get on the northern end of the bridge towards his home. When he reached the end of the draw, he says he fell from it into the river; defendants’ witnesses say lie got on the northerly end of the stationary part of the bridge and fell from that. He says he did not hear any whistle blow; that he was not paying any attention to it, whether it was or not; he did not see the police oiflcer, nor the gatekeeper, although both were there on the stationary part of the bridge; he did not see the lamp, nor whether it was lit or not, because he was going home in a hurry ; he saw lights on the bridge and also many people, but did not notice whether the gates on the north end of the bridge were shut or not. It was proved that the bridge was thoroughly lighted by electric lights, and that the night was clear. He was seen by the policeman stationed on the bridge, and' also by the gatekeeper, both of whom were standing on the northern stationary part of the bridge; he was then walking, and 15 feet from the end of the draw, as it commenced to move, he started to run; and the policeman shouted to him to stand back and also made a pass at him with his club in the endeavor to push him back on the draw,, where he would have been safe. Plaintiff has for some years lived near the bridge and daily worked witliin sight of it, and he says that “ from having seen the bridge open, he knew it was apt to be opened at any moment.”

It is as mu'ch the duty of the plaintiff to show, either by direct testimony,- or by facts and circumstances by which it may be reasonably- inferred, that he was himself free from *14negligence, as to establish the fact that defendants were guilty of negligence.

It is true that plaintiff's in negligence actions seldom fail to do this ; and hence, dismissals on this ground are rare. But when a case arises on uncontradicted evidence, requiring the court to dismiss the complaint or direct a verdict, it is its duty to do so.

While the defendants are bound to keep their streets and bridges in such repair that one may pass along them in safety, . without being on the constant 'lookout for dangerous places, yet, if one, in consequence of not looking, steps over the edge of the sidewalk and falls or is injured, he cannot recover. According to plaintiff’s own testimony he walked on the draw of the Harlem Bridge, which he knew was liable to be opened at any moment, without looking around to see whether it was about to be opened or not. He paid no attention to the warning whistle, nor to the shouts of the policeman. Although the bridge was well lighted and the night was not dark, he failed to see that the gates were closed on the end of the bridge he was approaching. He also failed to observe that the draw was in motion. In fact, according to his testimony, he exercised no caution whatever in crossing what he knew was a place where some care was needed. If, on the other hand, we assume the testimony offered by the defendants to be the true version of the occurrence, then he was equally guilty of negligence in attempting to get off the draw while it was in motion, in disregard of the warning of the policeman. In either case, he cannot recover.

Nor do we think there was any negligence proven on the part of the defendants. The only fact which could in any way be construed into negligence on their part, is that the gates at the southerly end of the bridge were not closed when plaintiff went upon the draw. It does not appear how long he had been upon it, nor how lon'g it would take him to cross it. At any rate, the fact of his being upon the draw, when it was opened, was not the proximate cause of the injury. Had he chosen, he could have remained on it until it was closed again, with perfect safety. This he did not choose to do, but, *15because he was in a hurry to get home, he attempted to get off the northerly end of the bridge while the draw was in motion, taking upon himself the peril of the act; or else walked on in sheer heedlessness. The defendants having placed gates on both ends of the stationary part of the bridge, and persons in charge to close them when the draw was about to be opened, and these persons having apparently done that duty in this case, it cannot be possible that the defendants were guilty of negligence in not having put up gates at the ends of the draw, to prevent reckless persons from walking off. '

The judgment should be affirmed, with costs.

Larremore, Ch. J., and Allen, J., concurred.

Judgment affirmed, with costs.