
    Carrie Whalen, Resp’t., v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Mfth Department,
    
    
      Filed October 23, 1891.)
    
    Neblí gen ce—Contributory.
    Plaintiff was injured while attempting to cross defendant’s tracks. It appeared that she waited for a freight train to pass, when upon stepping upon the nearest track she was struck hy a train coming in the opposite direction. There was nothing to obstruct her view of the approaching engine except the smoke of the freight engine. Held, that she was guilty of contributory negligence, and that defendant was entitled to a non-suit on that ground.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Monroe circuit, and from an order denying the defendant’s motion for a new trial on the minutes.
    
      A. H. Harris, for app’lt; G. D. Forsyth, for resp’t.
   Dwight, P. J.

The plaintiff was attempting to cross the defendant’s tracks on foot, at the grade crossing of Saxton street, in Rochester, when she was struck by an engine drawing a train to the east and received the injury which is the subject of this action. There are the usual four tracks at the crossing, the south track or Ro. 1, for east bound passenger trains, and a third from the south or Ro. 3, for west bound freight trains. The plaintiff approached from the south, on the east sidewalk of Saxton street, with her head enveloped in a pretty heavy shawl ” which covered her ears. She had been calling among her neighbors during the previous hour and had drank beer with one and cider with another. It was about seven o’clock in the evening of the 17th of January. It had been freezing all day and a very light snow had fallen at intervals. The sky was clouded and there was no moon. When the plaintiff came to the tracks she found a freight train on the crossing, passing to the west on track Ro. 3. It was a long train and she waited, standing close to track Ro. 1 until the freight train had crossed, when she stepped upon track Ro. 1, and the moment she did so was struck by the engine of the passenger train passing to the east.

There was nothing whatever in the way of buildings or other stationary objects to obstruct her view .of the approaching engine, whose head light was burning; and she could see and did see the freight train on the third track from her, and watched the caboose of that train until it had passed entirely across the street. She testifies that the smoke from the freight engine obscured her view of the approaching engine with its head light, although it did not prevent her seeing the caboose of the other train. Indeed she testifies distinctly that she saw the caboose of the freight train until her view of it was cut off by the other train; that is, the train approaching on the track next to her, and by the engine of which she was struck. This testimony seems difficult to understand, since if she saw the approaching train interpose itself between her and the departing caboose, it would seem that she must have seen the former in time to have avoided the collision. But however this may be, it is conceded that if the view of the approaching engine was intercepted or obscured by any means it was by the smoke of which the plaintiff speaks; and a body of smoke must have been very dense to shut out the view of the reflecting head light of an engine. If this is the truth of the case, then it is brought within the doctrine of Heaney v. Long Island R. R. Co., 112 N. Y., 122 ; 20 N. Y. State Rep., 296, where it was held that it was negligence, as matter of law, on the part of the deceased to enter upon the track, for the purpose of crossing, at a point where there was a body of smoke so dense as to obstruct his vision. The court say “ we think it was unquestionably his duty to await the disappearance of the smoke, and thus to be reasonably sure that he had a clear crossing; ” and further in language which, mutalis mutandis, may well be adopted in this case, the court says, “we think it perfectly clear that, if the plaintiff’s evidence is to be believed, the deceased voluntarily went upon the tracks, always a situation involving peril and calling for the vigilant exercise of one’s senses, when the clouds of smoke made or tended to make objects indistinguishable. Where a person voluntarily places himself in a position of peril, under circumstances which render him less able to protect himself by the use of his senses, he cannot fairly be deemed competent to complain of a consequent injury as due wholly to the acts of the other party.” This reasoning and conclusion seems to us to be fatal to the plaintiff’s case in this action, as disclosed by the record before us. Either the engine by which she was struck was in plain sight when she stepped upon the track, or it was obscured by a cloud of smoke, and it was negligence on her part to attempt the crossing until the smoke should be so far dissipated as to enable her to see whether an engine was close upon her.

In accordance with the doctrine and upon the authority of the case of Heaney, we think the defendant was entitled to a non-suit on the ground of contributory negligence of the plaintiff.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Macomber and Lewis, JJ., concur.  