
    David E. Burke, an Infant, by Frank Burke, His Guardian ad Litem, Appellant, v. New York Central and Hudson River Railroad Company, Respondent.
    
      Burke v. W. Y. C. & IF. B. li. B. Co., 165 App. Div. 946, affirmed.
    (Argued October 28, 1916;
    decided November 21, 1916.)
    Appeal from a judgment, entered December 26, 1914, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, sustaining defendant’s exceptions ordered to he heard in the first instance by the Appellate Division, setting aside the verdict in favor of plaintiff and directing judgment in favor of defendant in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while waiting at a railroad crossing for the passing of a freight train looked towards the rear and saw the lights that are usually displayed on the sides of the rear car or “ caboose ” of a freight train, the intervening freight cars being dark. Immediately after the lighted caboose had got past the sidewalk the plaintiff continued his journey across the track and was struck by a dark caboose attached to and immediately following the lighted one, was whirled under the wheels of that dark car and received the injuries complained of.
    
      
      George D. Judson for appellant.
    
      Maurice O. Spratt, and H. W. Huntington for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Oh. J., Hisgock, Chase, Collin, Cuddeback and Hogan, JJ. Not sitting: Pound, J.  