
    James Kettle, Appellant, v. John Turl et al., Respondents.
    (New York Common Pleas— General Term,
    June, 1895.)
    It is not negligence for the driver of one vehicle to drive so close to • another that his whiffletree would be likely to strike a man attempting to climb on the wheel of the latter, unless there is reason to apprehend injury from that cause.
    One who, having seen a heavy vehicle bearing down upon him, attempts to climb on the wheel of his truck on the side on which it was approaching, without looking to see where it was at the time, is guilty of contributory negligence.
    Motion by plaintiff for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after dismissal of the complaint at a Trial Term of this court.
    The plaintiff sued the defendants, the owners of a truck driven by their servant, for injuries inflicted, as was alleged, by the negligence of the driver, upon the plaintiff, who was also the driver of a truck. The defense was a denial and an allegation that the injuries sustained by plaintiff were caused wholly by his own negligence.
    
      Geo. H. Hcurt and John H. Whiting, for appellant.
    
      W. W. Wiles, for respondents.
   Daly, Ch. J.

The complaint was dismissed by the trial judge because the plaintiff had failed to show absence of contributory negligence. He was driving a truck down Tenth, avenue, on the right side of the avenue, and stopped close to the sidewalk below Twenty-fourth street, in order to dismount and pick up a knife, which he saw lying near the railroad tracks, which were in the middle of the avenue. After he picked up, the knife, he went back to his truck and stood on the side of it next to the middle of the street to put the knife into his feed bag. Then he attempted to mount his truck from the same side by placing his right foot on the hub of his wheel and holding on by his hand to the seat of the truck. While standing on the hub of his wheel and about to mount higher, his legs were struck by the whiffletree of defendants’ truck, which was heavily loaded with car wheels and was coming down the avenue. Plaintiff was swept off to the ground, receiving injuries to his ankle for which he sued. He had seen this truck coming when he went back to pick up the knife; it was then on the other side of the crossing of Twenty-fourth street and it was coming right down to him, and when he stood to put the knife in his feed bag it was coming right down behind him, but'he did not look to see where it was when he attempted to mount his truck and got on the wheel.

If it be assumed that defendants’ driver was negligent in driving so close to the plaintiff’s truck that his whiffletree would be likely to strike a4 man who attempted to climb, as plaintiff did, on the wheel, what evidence is there that he had cause to apprehend that plaintiff would get on his wheel, or that there was time to stop the heavily loaded wagon after he perceived the plaintiff in that position ? It was not negligence in the driver to approach so close unless there was reason to apprehend injury from that cause, and I do not find, in the facts detailed, evidence to justify any such expectation on the part of an ordinarily prudent person.

But if there be a question on the evidence, as to defendants’ negligence, the case is barren of evidence upon which to base a finding that plaintiff exercised due care. He knew that the truck wa's coming right down to him and he never looked to see whether it was safe for him to mount on the side on which it was approaching. Want of negligence may be established from inferences which may be properly drawn from the surrounding facts and circumstances, but in this case the undisputed facts leave no room for inferences. The plaintiff, without taking any precautions for his own safety, seeks to hold defendants liable for not being vigilant to avoid injuring him, although defendants’ driver could not know the danger in which plaintiff was about to place himself, and plaintiff, by the exercise of very slight care, could have perceived it. Plaintiff is bound to give some evidence showing the exercise of ordinary care, if the danger is obvious to ordinary inspection. Weston v. City of Troy, 139 N. Y. 282. Were there no evidence to show that he gave attention to the position which the coming truck would be certain to occupy when he attempted to mount his own, his case would be barren of the proof necessary to sustain the action for negligence, and where he expressly admits that he gave no heed and paid no attention, failure of his case in an essential particular 'is unquestionable.

Motion for a new trial denied, exceptions overruled and judgment ordered for defendants.

Bookstaveb and Bischoff, JJ., concur.

Motion for new trial denied, exceptions overruled and judgment ordered for defendants.  