#### COLLINS v. NEW YORK, C. & ST. L. R. CO.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Railroad Companies—Accidents at Crossings—Contributory Negligence.

In an action to recover damages for the death of plaintiff’s testator, it appeared that decedent had been employed for several years as a flagman near the crossing where he was killed, and was familiar with the running of defendant’s trains; that in the daytime he went on defendant’s tracks, crossing a street along which he was walking; that the street was then blocked by a freight train passing on a track parallel to defendant’s-tracks, a‘nd on the further side of them; that he walked a distance of 45-feet while the freight was passing, and might have seen defendant’s approaching train during that time, but did not look for it until it was too-late to escape it. *Reid,*that deceased was chargeable with negligence.

2. Same—Speed op Trains—City Ordinances.

An ordinance prohibiting the running of trains beyond a certain speed within city limits does not absolve a person from using his senses to avoid danger in approaching a railroad crossing.

Appeal from circuit court, Erie county.

Action by Winifred Collins, executrix of the will of Lawrence - Collins, deceased, against the New York, Chicago & St. Louis Railroad Company, to recover damages for the killing of plaintiff's testator. From a judgment in favor of defendant, entered on a non-suit, plaintiff appeals.

Affirmed.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JJ.

Frank Brundage, for appellant.

John G. Milburn, for respondent.

LEWIS, J.

The plaintiff’s testator, Lawrence Collins, whilé attempting to cross a railroad track of the Lake Shore & Michigan Southern Railroad Company, on Seymour street, in the city of Buffalo, was struck and killed by one of the defendant’s trains of cars passing across Seymour street upon the track of the Lake Shore Company. The plaintiff, as executrix, brought this action to recover the damages sustained by the next of kin, by the death of the testator. The death was concededly caused by the negligence of the defendant, which consisted in its train of cars being run at from 25 to 30 miles an hour, in violation of a city ordinance, which limited the running of trains in the city to a rate of speed not exceeding 6 miles an hour. At the close of the plaintiff’s evidence, a nonsuit was ordered, upon the ground that the plaintiff had failed to show that the deceased was free from contributory negligence.

The accident occurred about 7 o’clock in the morning of the 11th day of November, 1894, at a point where the State Line Railroad tracks cross Seymour street. Seymour street runs nearly east and west. The railroad tracks run north and south, and cross Seymour street at grade about at right angles. All these tracks are near together. The deceased, so far as was disclosed by the evidence, was first seen, just prior to the accident, coming from the west, and walking easterly upon the northerly sidewalk of Seymour street. He came to the intersection of Grosvenor and Seymour streets, *943which is just west of the westerly rail of the New York Central tracks. There are two tracks of the New York Central, crossing Seymour street. Just east of, and parallel to, the Central tracks-are two tracks of the Lake Shore Railroad. Jacob Hierl and Pauline Schrobe, two of plaintiff's witnesses, were standing at the junction of the streets mentioned, waiting for a freight train, which-was running southerly upon the easterly Lake Shore track, to pass-across Seymour street. Collins stood there with them for a minute^ and then all three continued along on the northerly side of Seymour street across the tracks of the Central Railroad, and when they came to the westerly Lake Shore track, the freight train had' not yet passed over the crossing, and they halted for a moment,, and then they all stepped in between the rails of the westerly Lake-Shore track, the deceased being a little in advance of the others. The deceased and Hierl then looked to the north and south along the track on which he was standing,- to see if a train was approaching. They discovered a train, composed of a locomotive and four-cars, approaching on the track on which they were, from the south, close to them. Hierl and Miss Schrobe stepped or jumped back from between the rails. The deceased stepped or jumped forward, over the easterly rail, into the space between the two Lake Shore-tracks. The engine passed without hitting him, but the corner of the first car behind the engine struck him. It was 45 feet between the junction of the streets mentioned, along the northerly side of Seymour street to the first rail of the west Lake Shore track. The Lake Shore tracks southerly from Seymour street were straight fora distance of about 500 feet, then they bent to the east slightly.

The deceased had been employed for a number of years as a flagman at a street crossing in the immediate vicinity of Seymour street, and must have been entirely familiar with the railroad tracks-across Seymour street, and with the running of trains. There was-nothing to prevent his seeing the approaching train, had he looked in that direction, at any time while he was walking the 45 feet between the junction of the streets mentioned and the Lake Shore track. It was daylight at the time. The evidence and circumstances show, beyond any question, that he would have seen the train,, had he looked in the direction from which it was coming. He-walked the distance mentioned, in plain sight of the train, paying no heed to it until he was upon the track on which the train was coming, when he for the first time looked, but it was then too late-to avoid the accident. If what occurred after the deceased arrived upon the westerly Lake Shore track, and first saw the approaching train, was the only thing to be considered upon the question of his contributory negligence, a case would have been presented which should have been submitted to the jury. The contributory negligence on the part of the deceased consisted in his going upon the track without having looked to see if a train was approaching. He was entirely familiar with the crossing. He knew that a train was liable at any moment to pass along the track. He knew that the track just east of him was occupied at the time by a passing" *944freight train, which was an obstacle to his escape in that direction. And yet, notwithstanding all this, he went upon the track without having made use of his senses to avoid danger, which he must have known was to be apprehended.

It is urged by the appellant’s counsel that the deceased had a right to assume that a train would not be running at a greater rate of speed than that fixed by the city ordinances. The rule referred to does not go to the extent of absolving a person, when approaching a railroad crossing on which a train is liable to be running, from, making use óf his senses to avoid danger. Wilcox v. Railroad Co., 39 N. Y. 358; Cullen v. Canal Co., 113 N. Y. 667, 21 N. E. 716; McGrath v. Railroad Co., 59 N. Y. 468.

The judgment should be affirmed. All concur.