
    Annie Kupec, as Administratrix, etc., of Michael Kupec, Deceased, Respondent, v. Interborough Rapid Transit Company, Appellant.
    First Department,
    June 14, 1907.
    Negligence — injury to employee on subway railroad — contributory ■ negligence in crossing track.
    One employed on a subway railroad who does not avail himself of a safe method of crossing the. track provided by the master, but jumps upon'the track in front of an approaching train which he could have seen had he.looked, is. . guilty of contributory negligence.
    The .negligence of the master cannot be predicated upon its failure to furnish ' the employee with a lamp so that he could be seen by the motorman, when the evidence shows that he was in fact seen by the motorman. Under such circumstances a lantern would hot have’prevented the Occident.
    Appeal by tíre defendant, .tbe Interborongh Rapid Transit. Company, from a judgment - of tbe Supreme Court in favor of tbe plaintiff, entered- in tbe office of tbe clerk of the county of New York on tbe 27th day of October, 1906, upon the verdict of a jury for $5,000, and also: from an order entered in said clerk’s office on the 24th day of October^ 1906, denying tbe defendant’s motion for a new trial made upon the minutes.
    
      J. Osgood Nichols \_G. Tarleton Qoldihwaite with him-on tbe brief], for the appellant.
    
      Joseph Steiner, for tbe respondent,
   McLaughlin, J.:

On tbe 9th of October, 1904, tbe plaintiff’s intestate was, in the employ of the defendant as an electrician’s helper. ' He attempted to cross its tracks at tbe downtown subway station at One Hundred and Thirty-seventh street and Broadway, and in doing so was struck by "a south-honhd car, receiving injuries from which he died a short time thereafter. This action was brought to recover the'damages sustained, on 'the ground that his death was'

• due to the negligence of the defendant. Plaintiff had. a verdict for $5,000, and from the judgment entered thereon and an order ■ denying a motion for a- new trial defendant appeals.

The intestate jumped from the station platform onto the southbound tracks and had only taken a few' steps when he was struck by the car. The evidence clearly shows that he jumped right in front of the car, or so nearly in front of it. that he had barely time to take a few steps when he was .caught by the. car and crashed between it and the platform. There are three tracks at this point, the north and south-bound locals and the express in the center. The uncontradicted evidence is that there were lights upon the car and there was nothing to obstruct the vision north of the station as far as One Hundred and Forty-fifth street, and had the deceased, looked in that direction or exercised any care whatever to ascertain whether a car were approaching, lie could not help but have seen it. There is some evidence to the effect that there is a curve at this point, but the overwhelming weight of evidence is that the car was not running on this curve. The train was started about' 300 feet north of the station, which was plainly visible from the place where the intestate jumped from the platform. He was familiar with the operation of the cars, the situation of the tracks, and had been told' of the location of the person who gave the signal to start the cars. The fact is undisputed that the motorman saw the intéstate' when he jumped from the platform and that the train was stopped," after it struck him, within about" half its length. The claim of the respondent, -therefore, that the intestate should have been supplied with a, lantern so that the motorman of the car could see him is of no consequence, because it would have made no-difference ; the accident would have occurred'just the same.

Hot only this, but there is no evidence of any negligence on the part of the defendant. It had provided another way to reach the place where he was at work. This is what is called in the record a “towpath.” .This towpath was provided for the purpose of enabling the employees to go to and from their work without cross- ' ing the tracks. He could have returned to his work in this way without subjecting himself to any danger whatever. He did not do it-,, but instead attempted to cross the tracks, and thereby lost his life. ■ There is, as I read the record, no evidence" whatever which justified a finding on the part of the jury that the defendant was negligent, and the'evidence is overwhelming that the deceased himself was guilty of contributory negligence. Had he exercised the slightest "care for his own. protection the accident- could not have happened. The ■ truth .is, he heedlessly and carelessly jumped almost immediately in front of the moving train, and then, as.one of the. -witnesses said, “ lost his head,” ,and instead of continuing in the direction in which lie was going, undertook to get back onto the platform, and, before he succeeded in doing .so, was struck by the car.

The case in principle' cannot be distinguished from Keating v. Manhattan R. Co. (110 App. Div. 108) and McLaughlin v. Manhattan R. Co. (111 id. 254).

The judgment , aiid order appealed from,. therefore, must he. reversed- and a new trial ordered, witty costs to appellant to abide event.

Patterson, P. J., Laughlin, Houghton and ' S.oott, J J., concurred. •

Judgment- and order reversed, new trial ordered, costs to appellant to abide'event. ’  