
    John W. Nolan, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Negligence—Contbibutoby—Railroad cbossing.
    PlaintiS was injured by being struck by an engine while attempting to-cross defendant’s tracks at a. street crossing. He testified that he could not see to the west until he passed a car standing on a branch track; that after passing it he looked both ways and saw nothing, and upon reaching the-other track he was struck by the train. It was shown that the view to the west was unobstructed for twenty-one feet before reaching the last track, and there was evidence that plaintiff was intoxicated at the time. Held, that the verdict in plaintiff's favor was clearly against the weight of evidence, and should be set aside.
    Appeal from, a judgment entered in Monroe county, on a verdict of a jury, on the 14th day of October, 1890, and from an order denying a motion for a new trial on the minutes.
    The action was brought to recover damages for an injury received by the plaintiff by being run over by the defendant’s cars while crossing its tracks on Kent street, in the city of Rochester. The injury received caused the plaintiff to lose his leg. The verdict was for $5,000.
    
      Forsyth & Baker, for resp’t; Harris & Harris, for app’lt.
   Lewis, J.

We assume, in disposing of this appeal, that there was sufficient evidence of defendant’s negligence to send that question to the jury. But giving the most favorable construction to the evidence for the plaintiff, we think he failed to prove himself free from negligence contributing to his injury. The accident occurred at or near where the defendant’s tracks cross Kent street, in the city of Rochester. Kent and Oak streets run parallel with each other, and in a northwesterly and southeasterly direction. Three of the defendant’s tracks cross Kent street in an easterly and westerly direction, making a sharp angle with Kent street. The northerly track is elevated over Kent street The two southerly tracks run substantially or nearly parallel with each other upon a grade of the street. The northerly side of the grade tracks is a branch crossing Kent street, and extends westerly nearly to Oak street, and passes near the abutment of the bridge of the elevated road. The southerly track, and the one on which the plaintiff was injured, crosses Kent, street nearly parallel with the middle track, but slightly diverging therefrom to the south. The southerly track divides between Kent and Oak streets at a switch 181 feet west of Kent street, measuring along the track. The two tracks extend westerly from said switch, diverging from each other.

The elevated road bridge over Kent street stands on stone abutments eighteen feet high. The westerly abutment extends southerly to within a few feet of the northerly rail of the northerly surface track. From the south rail of the north surface track to the north rail of the south track, measuring along the west line of Kent street, is twenty-one feet. The centers of the north and south branches, measuring along the west line of Kent street, are thirty-one and one-half feet apart The north rail of the south track and the south rail of the north track at the west line of Kent street, measuring at right angles, are nine feet and three-tenths apart.

The accident happened between five and six o’clock on the afternoon of the 8th of June, 1886. The day was clear and bright. The plaintiff was residing in the vicinity of the place of the accident, and was familiar with the railroad and its surroundings. He was the only witness called upon his part who gave an account oí the accident. He testified that he approached the place of the accident walking upon the westerly side of Kent street; passed under the railroad bridge; that a freight car wTas standing upon the branch track on the westerly side of Kent street; that he was not able to look to the west along the track until he had passed around the end of this freight car; that he passed around the easterly end of the freight car, and then stopped and looked to the east and to the west along the track, and did not see or hear an approaching train; that as he got to the southerly track, an engine backing eastwardly upon the southerly track, and drawing eight or ten freight cars, “ swooped down " upon him, and knocked him down and crushed his leg.

After passing the freight car, and all the way down to the place of the accident, a distance of twenty-one feet, the plaintiff had an unobstructed view to the west along the railroad tracks on which the train was approaching for a distance of about two hundred feet He was on foot, was able to stop instantly, and a glance to the west would have advised him of the approaching train. There was no evidence that there was anything to attract his attention or to obstruct his view. He did not attempt to testify as to the speed of the train, except to say that it was running fast. Quite a number of witnesses called by the defendant testified that they saw the train approach the place of the accident, and that it was moving not to exceed four or five miles an hour. One of the defendant’s witnesses thought it was going as “ fast as a horse would trot at a pretty good jog.” It did not appear how rapidly the plaintiff was walking. If he was walking two miles an hour, and the train was moving four to six miles an hour, it was plain to be seen by him all the time after he passed the freight car down to the place of the accident. While he testifies that he looked to the west, and did not see the train, the facts of the case conclusively contradict him. If he looked he must have seen it. A number of witnesses, called by the defendant, testified that they saw the plaintiff walking along the railroad track from Oak street toward Kent street immediately before the accident; that he was very much intoxicated ; that he was struck by the tender of the engine before he reached Kent street, and dragged along upon the ground. The defendant’s account of the transaction was reasonable and probable, while that of the plaintiff was exceedingly improbable. The facts of the case-of Woodard v. The N. Y, L. E. & W. R. R. Co., reported in 106 N. Y„ 369; 11 N. Y. State Rep., 169, were much stronger for the plaintiff than the case at bar.

Woodard approached the crossing, carrying a basket of coal, and was struck by a car kicked down from the west and moving by its own momentum. When he approached to within ten feet of the track the car approaching him at the rate of four miles an hour could have been seen at a distance of 187 feet. Judge Finch, in speaking for the court, said: “ The accident occurred in the middle of a bright and clear day, when nothing existed to obstruct or hinder the sight, when the injured man was on foot and could have stopped at any instant, and when the merest glance along the switch to the west would have developed the approaching danger. So that the facts make it absolutely certain that Woodard either looked and seeing the car coming undertook to cross in front of it, or did not look when that was his duty, and went blindly upon the track, taking the chances of what might occur.” The judgment in favor of the plaintiff was reversed.

This court decided in the case of Mulligan, administratrix, v. The New York Central & Hudson River Railroad Company, 33 N. Y. State Rep., 534, that the power and the duty of the court to set aside verdicts which are clearly contrary to the just preponderance of the evidence is one recognized and enjoined by all the authorities. This is a case where the serious and terrible loss sustained by the plaintiff evidently so excited the sympathies of the jury, that sentiment, rather than the proven, facts, controlled their verdict.

We think the verdict is against the great preponderance of the evidence, and that the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.  