
    James Weed, App’lt, v. New York Central & Hudson River Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 2, 1895.)
    
    Negligence—Contbibtjtoby.
    A person, who knows that the gates at a railroad crossing are not operated during certain hours, cannot rely on the fact that the gates are open between those hours as an assurance of safety.
    Appeal from a judgment dismissing the complaint, and from an order denying a motion for a new trial, made on the minutes.
    
      A. H. F. Seeger, for app’lt;
    
      Ashbel Green, for resp’t.
   Pratt, J.

This was an action for damages for personal injuries caused by plaintiff being run into by a south-bound train of defendants on the West Shore railroad. The action was tried before a jury, and a verdict rendered for defendants. The case was submitted to the jury under a fair and unexceptional charge, and there is no exception in the case disclosing error sufficient to warrant a reversal of the judgment

The principal point made by the plaintiff to establish his case was that the gate was not manned and worked at the plac'e where the highway crossed the track where the plaintiff was injured. The answer to this proposition, as well as to the cases cited upon this point, is made by the fact that appeared upon the trial, that defendants were not accustomed to operate the gate between seven o’clock in the morning and 7:30' p. m., and this fact was known to the plaintiff, who was accustomed to cross the railroad at this point; therefore, those cases that hold a failure to shut the gate may be considered by the jury, as mentioned, as proof of negligence and contributory negligence, are not in point upon the case here. All these latter-named cases, which" are of a similar character, have been the result of accidents taking place while gates were in operation, and the injury was inflicted upon persons not familiar with the locality.

We think the verdict was fully supported by the evidence, and ought to stand.

Judgment affirmed, with costs.

All concur.  