
    Arthur Wilson, Respondent, v. Rochester and Eastern Rapid Railway Company, Appellant.
    Fourth Department,
    January 8, 1908.
    Negligence — street railroad—injury by passing behind moving car — contributory negligence.
    A passenger who, after ringing for a street car to stop, alights at a cross street while the car is still in motion and passes immediately behind it and upon the parallel track where he is struck by a car, is guilty of contributory negligence when it is conceded that the corner lights on the car which struck him were burning and the preponderance of evidence shows that the headlight was also burning.
    Under such circumstances the defendant cannot be charged with negligence when there was nothing to indicate to the motorman that ¿.person had alighted from the other car and no reason for him to conjecture that a passenger would alight there and attempt to cross the tracks.
    
      Appeal by the defendant, the Rochester and Eastern Rapid Railway Company, from a judgment of the County Court of'Monroe county in favor of the plaintiff, entered in the office of the clerk of said county on the lltli day of February, 1907, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 24th day of September, 1907, denying tlie defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 25th day of May, 1906, to recover damages for personal injuries sustained by the plaintiff, alleged to have been caused solely through the negligence of the defendant.
    
      Edward Harris, Jr., for the appellant.
    
      Howard H. Widener, for the respondent.
   McLennan, P. J.:

The accident which is the subject of this controversy occurred in Monroe avenue in the city of Rochester, iST. Y., at about eleven-fifteen p. m. on the night of April 24, 1906. The plaintiff was struck by one of defendant’s cars and suffered the injuries of which he complains. The plaintiff was a mailcarrier, and on the night in question was delivering mail. He boarded a west-bound Monroe avenue car belonging to and being operated by the Rochester Railway Company. The defendant was running its car over the tracks of the Rochester Railway Company, and at the time of the accident one of the defendant’s cars was on its way from Exchange street in the city of Rochester to Geneva. As the car of the defendant passed Edmund street it struck the plaintiff, who had just alighted from the car of the Rochester Railway Company while it was in m'otion, and started to cross at the rear of such car the tracks upon which the defendant’s car was approaching. The plaintiff did not wait until the car upon which he was riding stopped, but jumped off from it while it was in motion and immediately started to go behind the car from which he alighted, on' the track upon which might be expected an approaching car from the opposite direction. Under such circumstances we think it was incumbent upon the plaintiff to have seen to it before attempting to cross the other track of the railroad that another car was not approaching. The plaintiff says he took and exercised this precaution by looking, but it is apparent that if he had looked intelligently. he .could have seen thó approaching car. The corner lights upon the car were concededly lighted and burning and it is established by the preponderance of evidence that the headlight of the. approaching car was also burning. Besides there was absolutely .no reason for those-operating the defendant’s car to suppose that at, the place in question there would be any person alighting from the Rochester Railway Company’s car who would desire to cross the tracks. The car upon which the plaintiff was riding had not stopped; in fact did not stop. He jumped off while it was in motion, and there was nothing to indicate to the approaching car of the defendant that any person had alighted from the Rochester car." It is said that the defendant’s car was going at the rate of thirty miles an hour; that there was no headlight upon it. We think such finding, if it led to a finding of the defendant’s negligence, was against the weight of the evidence. We also conclude that the finding that the plaintiff was free from contributory negligence under all the circumstances is against the weight of the evidence. It seems to us that . the evidence almost conclusively establishes that, •the plaintiff was guilty of contributory negligence. He rung for the car to stop at a certain street. Without waiting for the car to so stop, he jumped off and immediately started in the rear of the car to cross the other tracks, and it is apparent that a moment’s notice would have apprised him, either by the corner lights or by the sound, that a car was approaching. But he went onto the other track heedlessly and thoughtlessly, and was injured. It seems to us clear that the plaintiff was guilty of contributory negligence, and also that the finding of the jury under all the circumstances that the defendant was guilty of negligence is against the weight of the evidence.

It follows that the judgment and order appealed from should be reversed and a new trial ordered upon questions of law and of fact, with costs to the appellant to abide the event.

All concurred.

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