#### James O’Brien, as Administrator, etc., of Edward O’Brien, Deceased, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

First Department,

December 11, 1908.

Bailroad — negligence — attempt to cross in front of moving engine —■ contributory negligence.

One who was killed at a railroad crossing was guilty of contributory negligence as a matter of law where, on a bright day, having passed between two cars, he looked in the direction from which a rapidly moving engine, visible to other persons, was coming and, notwithstanding he presumably saw the engine, attempted to cross the track and was struck before he succeeded in doing so.

Appeal by the defendant, The Hew York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 27th day of January, 1908, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 7th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*Robert A. Kutschbock,*for the appellant.

*Don M. Almy,*for the respondent.

Houghton, J.:

The action is to recover damages for the death of plaintiff’s intestate through defendant’s negligence.

At the place where the accident occurred the defendant maintains four freight railroad tracks adjacent to the Horth river. Plaintiff’s intestate on a bright day was attempting to cross these tracks at what is claimed to he One Hundred and Thirty-second street, in the city of Hew York. This street, although paved up to the tracks on each side of the railroad, is not paved between the tracks so as to permit the passage of wagons. Conveyances desiring to cross the tracks td the river docks do so at One Hundred and Thirty-first street and One Hundred and Thirty-third street, where the defendant maintains gates and flagmen. Foot passengers are accustomed *289to use the One Hundred and Thirty-second street crossing, as occasion requires, at which no gates are maintained. The most westerly and the most easterly tracks are used for the storage of cars, and the two center tracks are used for north and south freight trains. The deceased passed through an opening of four or five feet between cars standing on the most westerly track, and as he was attempting to cross the first, or south-bound track, he was struck by a backing engine going at considerable speed and instantly killed.

Aside from the question as to whether One Hundred and Thirty-second street at this point was a highway duly accepted, or whether it was such a place of crossing that the deceased was justified in using it for that purpose, and also aside from the fact as to whether the defendant was guilty of any negligence in the manner of running its engine, the judgment must be reversed, because the evidence clearly shows that plaintiff’s intestate was guilty of contributory negligence as matter of law in crossing in the manner in which he did.

All of the plaintiff’s witnesses who testified to the actual happening of the accident say that as the intestate came from between the cars and approached the track upon which the engine was backing, his face was turned toward the north and toward the coming engine, and two of the witnesses say that upon observing deceased looking in that direction they themselves turned and looked and saw it. Notwithstanding the deceased thus looked, and thus presumably knew the situation, he continued to cross the track and was struck before he succeeded in doing so.

Before plaintiff could recover it was incumbent upon him to prove by some facts or circumstances from which a fair inference could be drawn, that his intestate was free from contributory negligence. (Ru*dolph*v. Montant, 37 App. Div. 396.) The deceased was a truck driver and presumably could see. Instead of proving anything from which a fair inference could be drawn that the deceased was free from contributory negligence in crossing the track, the plaintiff himself proved facts which showed that deceased saw the approaching engine and instead of using proper care took the chance of being able to cross in front of it without injury. One approaching a steam railway crossing must look and listen and *290use caution because it is a dangerous place. Had plaintiff’s intestate only been injured and been able to testify and testified that he looked and saw the approaching engine and thought he had time to cross, it must have been held as matter of law that he did not use due caution and .that he took the chance of in jury. Had he testified that he looked when the engine was in plain sight and did not see it, the same construction must have been put upon his testimony because if he was able to see, the statement that he did not -see would be deemed incredible as matter of law. *(Dolfini*v. *Erie R. R. Co.,*178 N. Y. 1.) As the proof stood, therefore, it was error for the court to submit the case to the jury, and the motion for a nonsuit should have been granted.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. •