
    JAMES FITZPATRICK, as Adm., &c., Appellant, v. THE NEW YORK, NEW HAVEN AND HARTFORD R. R. CO., Respondent.
    
      Action for causing death by negligence—when deceased deemed chargeable as matter of law with contributory negligence in crossing railroad track.
    
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided June 5, 1882.
    Appeal from judgment dismissing complaint with costs.
    Action to recover damages for causing death of plaintiff’s intestate.
    .The deceased, for a considerable time prior to the occurrence complained of, had been engaged in driving a baggage express wagon to and from the Grand Central Depot in the city of Hew York, and so was familiar with the locality and the manner in which trains came in. On the morning in question, in daylight and with nothing to obstruct his view, he started from the baggage room on the east side of the said depot between Forty-second and Forty-third streets, and drove towards Forty-fourth street, about the length of a block along a track occupied by an in-coming train, and in the face of it. The train consisted of four or five cars which came down the westerly track at a speed of four or five miles an hour, and were manned with four brakemen, one of which was upon the front platform of the first car. The engine had been detached and switched off, and had come to a stand still at the corner of Forty-fourth street, on a track to the east of the track of the incoming train, and on the train the brakes had been put on at Forty-fifth street. At this juncture, the deceased, though he might have halted and remained safely between the easterly wall of the depot and the track of the incoming train, undertook to go easterly across the said track and between the rear of the engine standing still and the approaching train. In consequence of this the collision occurred, for although, when the brakeman hallooed to him, the deceased tried to get back upon the space between the track of the cars and the wall of the depot, he only succeeded in getting the horse off the track, but failed to get the wagon off. The train ran about four feet after striking the wagon. The evidence shows that the deceased could and should have seen the approaching cars for a considerable distance, and for a sufficient length of time to have avoided them.
    
      Julius Lippman, for appellant.
    
      William E. Barnett and A. H. Anderson, for respondent.
   The court at General Term, after stating the facts, as above, held:

“Upon the whole case, it affirmatively and clearly appeared that the deceased, in attempting to cross as he did, was guilty of contributory negligence, and the complaint was properly dismissed.”

Opinion of Freedman J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.  