
    John Crowley, as Administrator of Timothy Crowley, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence — unnecessary exposure of onés person, while alighting from a wagon, to a collision with a street car.
    
    The driver of a wagon who, while it is backed up against a street curb, and standing in front of his employer’s premises, with its front wheels turned under and at right angles to the body of the truck, so that the hub of the outside wheel is some ten inches from the track of a street railway, attempts to dismount by stepping upon the hub with his back to the track, although familiar with the situation and perfectly aware of the limited space between the hub and the track, at a time when a car is approaching rapidly in full view at a distance of fifty feet, and who, while thus upon the hub of the wheel, is struck by the car and fatally injured, is guilty of contributory negligence as a matter of law.
    Appeal by the plaintiff, John Crowley, as administrator of Timothy Crowley, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of February, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      
      J. J. Delany, for the appellant.
    
      C. F. Brown, for the respondent.
   Patterson, J.:

On the trial of this action, which was brought to recover damages for injuries resulting in the death of the plaintiff’s intestate, the court dismissed the complaint at the close of the plaintiff’s proofs. The particular ground upon which the dismissal was directed was, that the evidence showed that the plaintiff’s intestate was guilty of contributory ■ negligence, and that it affirmatively appeared that the occurrence which resulted in his death was the consequence of his own proven imprudence in part, if not altogether. This view of the trial justice is sustained by the evidence by which contributory negligence as matter of law is made to appear. • The plaintiff’s intestate was the driver of a wagon owned by one Morgan, who was engaged in business carried on on premises No. 217 Centre street, near Grand street, in the city of New York, such premises being on the westerly side of Centre street. On the morning of August 31, 1896, the plaintiff’s intestate was engaged in loading a wagon belonging to Morgan, which wagon was constructed- in a particular manner to suit the conditions of Centre street in front of the premises mentioned, and especially with reference to the railroad track of the defendant. The wagons were “ so made that the cars could pass up and down when they were backed into the curb.” The plaintiff’s intestate had been in the employ of Morgan for some months, and was in the habit of loading his wagons. The wagon was so constructed that upon its being backed up to the curbstone of the sidewalk the front wheels could be turned under the body of the wagon, so that they would stand at right angles with the rear wheels and parallel with the rail of the defendant’s road. On this morning Morgan’s wagon, upon which the plaintiff’s intestate was engaged 'at work, was thus standing.in the street, the front wheels being turned under the truck, the horse attached to it standing at right angles with the body of the truck and facing north. As the wheels were thus turned under, the hub of one of them was pointed to the east, and there was a space between that hub and the westerly rail of the defendant’s track of some ten inches, more or less. There was room for the cars of the defendant to pass by the track without colliding with it.

On the morning in question, about nine o’clock, one of the defendant’s cars coming from Grand street with the track unobstructed in front of it, was at a distance of some fifty feet from the wagon when Morgan directed the plaintiff’s intestate to come down from it. He started to get down, having his back to the railroad track and his face to the wagon. Morgan at that time heard the bells of the car; he swears that the car at that time was fifty feet away, moving at a rather fast gait. When Morgan heard the jingle of the bells, Crowley was on the wheel of the wagon, and when the car struck him he was on the wheel; he was getting off the hub of the wheel and he was still there when he was struck by the car. Here then was the case of a man who had been in the employ of Morgan for months; who knew all about the situation of Morgan’s wagons with reference to the railroad track; who must have known of the frequency with which cars passed, of the limited space between the hubs of the wheels when they were standing in front of Morgan’s premises and the railroad track; who places himself in a position of peril when a car is only fifty feet away from him coming at a fast gait; who remains in that position until the car can traverse the distance of fifty feet, and who thus exposes himself knowingly to the peril of the very accident which happens him.

It cannot be disputed that the plaintiff’s intestate knew all about the situation of the wagons and of the running of horse cars in front of them. • He backed up wagons against the sidewalk in front of Morgan’s premises every day, and he was, therefore, perfectly aware of the surroundings. There is nothing to show that he exercised the slightest care or prudence of any kind ; but when he was called, regardless of anything, he stepped down upon the hub of the wheel and remained there until a car, which was fifty feet distant when he took his position on the hub of the wheel, reached and struck him. Unless the question of contributory negligence has ceased ever to be a question of law, it was one in this case. There was nothing to be left to the jury upon that topic. The whole proof, and all the inferences from it, established that the failure of the plaintiff’s intestate to look about him, and his act in undertaking to descend in this perilous way without looking, was the cause of the disaster that overtook him.

The question here is not as to what constitutes negligence in passing in' front of a car, or in attempting to cross a street when a car is at any given distance away, but it is simply whether a person acquainted with a particular situation, and knowing what is likely to occur at that point at any time, who places himself in a position of peril, remains there without observing the conditions likely to exist and is inj ured in consequence of his own act, is or is not, as matter of law, guilty of contributory negligence.

While the learned judge, in assigning his reasons for dismissing the complaint on this ground, may have expressed the rule more strongly than was necessary, the conclusion he reached, we think, was right.

The judgment appealed from should be affirmed, with costs-.

Van Brunt, P. J., Barrett and Rumsey, JJ., concurred; Williams, J., dissented.

Judgment affirmed, with costs.  