
    Philip Golberg, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Negligence—Railroad.
    Plaintiff, a passenger on one of defendant’s trains, alighted from the train on the side opposite the depot, and was struck hy a train going in the opposite direction, which was under full control, with its hell ringing, and running at a rate not exceeding three miles an hour. When plaintiff alighted the track was obscured by steam from the engine. There was some evidence that the train from which plaintiff alighted was standing when he was struck, but this was contradicted. Feld, that negligence on the part of defendant and freedom from negligence on plaintiff’s part, | were not shown, and that he was not entitled to recover.
    Appeal from judgment entered on dismissal of the complaint, and from order denying motion for a new trial.
    Action tq recover damages for injuries sustained by plaintiff, who was a passenger in one of defendant’s north bound trains. He alighted at Hastings, on the side opposite the depot, while the track was enveloped in steam and smoke from the engine, and was struck by the engine of a south bound train which was slowly coming into the station, with the bell ringing, at a rate of speed not exceeding three miles an hour. The first trial resulted in a judgment in favor of plaintiff, which was reversed by the court of appeals. On the second trial two witnesses testified that plaintiff’s train was at asstandstill when he was struck; while two other witnesses testified it was either moving or just starting.
    
      William Riley, for app’lt; Frank Loomis (D. W. Tears, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff was a passenger on the defendant's road from Yonkers to Hastings. When he arrived at Hastings he got off the cars on the west side, and as he proceeded towards the river he was struck by a train going south. The station at Hastings is east of the track. The general facts surrounding the accident are not materially changed upon this trial from those presented upon the former appeal. The court of appeals decided therein that no negligence was proven, and that the proof of freedom from contributory negligence upon the part of plaintiff was not sufficient. Goldberg v. N.Y. C. & H. R. R. R. Co., 133 N. Y., 561; 44 St. Rep., 71.

The judgment and order denying a new trial should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  