
    Patrick Redmond, App’lt, v. The Rome, Watertown & Ogdensburg Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 23, 1890.)
    
    Negligence—Contributory.
    Plaintiff, who-w.as a conductor on defendant's road, and had been acquainted with the tracks in the yard at Watertown, while his cars were being switched, stepped .from the train, and without looking west, walked on or near a parallel track and stood there until struck by an engine backing from the west. He gave no excuse for so doing, except that he was watching a brakeman who was running to throw the switch. Held, that the evidence not only failed to show that pilaintiff was free from contributory negligence, but showed gross and inexcusable negligence which resulted in the injury, and .that' plaintiff was properly nonsuited.
    Appeal from a judgment entered in Jefferson county, dismissing the plaintiff’s complaint with costs.
    
      Henry Purcell, for app’lt; Edmund B. Wynn, for resp’t.
   Martin, J.

We think the appeal in this case should not pre-vaiL The action was for -negligence. The relation of the parties was that of master and servant. The accident which was the sub-ject of the action occurred on the 4th day of June, 1886, at or near the intersection of .the defendant’s road with Arsenal street, in the city of Watertown, 1ST. Y The circumstances under which it occurred, briefly-stated, w,ere as follows: The plaintiff was a .conductor upon one of the defendant’s freight trains. On the day of the accident he ran his train from Watertown to Grouverneur and return. On his return, between six and seven o’clock, in the afternoon, he ran in and switched the cars for the south in the west end of the defendant’s yard, leaving two cars and a caboose in the train. When the train reached a point near the water plug, the engine was detached, and the cars were permitted to run down the grade into that portion of the yard where they were to be switched. The caboose, was ahead. As the train reached the point where the accident occurred the plaintiff stepped off, and without looking west walked on or near to a parallel track, and stood there until he was struck and seriously injured by an engine which was backing from the west on that track.

The plaintiff was well acquainted with the yard and its. tracks, and had been for many years. He passed the engine by which he was injured while his train was backing into the yard. If he had looked in the direction from which the engine came he would have had no difficulty whatever in discovering its approach, as the track was straight for about a mile. Ho excuse for standing upon or so near the track without looking to see the approaching engine was given, except that he was. watching a brakeman who was running to throw a switch to let the train in on a branch or siding.

The plaintiff claimed that no bell was rung or whistle sounded, as this engine approached the crossing; that it was in the hands of a fireman, the engineer having left it; and that the defendant was negligent in retaining such engineer in its employ, as héwas an improper person to have the charge or management of an engine, by reason of his accustomed negligence, which was, or should have been, known to the defendant. On the trial, at the close of the evidence, the plaintiff was nonsuited.

As we view this case the only question we need consider is,, whether the plaintiff was guilty of negligence which contributed to his injury. H the evidence failed to show that the plaintiff was free from negligence, it follows that the court properly directed a nonsuit, as in an actidn of this character the burden of establishing affirmatively his' freedom from contributory negligence is upon the plaintiff. Hale v. Smith, 78 N. Y., 480; Lee v. Troy Citizens’ Gaslight Co., 98 id., 115; Tolman v. S., B. & N. Y. R. R. Co., id., 198.

The question of contributory negligence is usually a question of fact to be submitted to the jury, still, there may be such an absence of proof of freedom from such negligence, or the proof thereof may be so strong and convincing as to make it the duty of the court to direct a nonsuit or a verdict for the defendant. If the evidence in this case, either circumstantial or direct, tended to show that the accident occurred without the plaintiff’s, negligence, a question of fact arose which should have been submitted to the jury. H, on the other hand, the evidence wholly failed to establish the existence of any cause for the accident which was consistent with the exercise of proper care and prudence by the plaintiff, the court properly nonsuited.

It has been repeatedly held that it is negligence per se for a person to board or alight from a moving train, Burrows v. Erie R. Co. 63 N. Y., 556 ; Morrison v. Erie R. Co., 56 id., 302 ; Solomon v. Manhattan R. Co., 103 id., 437; 3 N. Y. State Rep., 636 ; Hunter v. C. & S. V. R. R. Co., 112 N. Y., 371; 21 N. Y. State Rep., 1, or to attempt to cross a railroad track without looking for approaching trains, Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y, 369 ; 11 N. Y. State Rep., 169; Young v. N. Y., L. E. & W. R. R. Co., 107 N. Y., 500; 12 N. Y. State Rep., 285 ; Powell v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 613; 14 N. Y. State Rep., 74; Cullen v. D. & H. C. Co., 113 N. Y., 667; 23 N. Y. State Rep., 719; Bomboy v. N. Y. C. & H. R. R. R. Co., 47 Hun, 425; 14 N. Y. State Rep., 291; Brickell v. N. Y. C. & H. R. R. R. Co., 12 N. Y. State Rep., 450, or to stand between the rails of .a side track upon which cars are standing, Van Schaick v. H. R. R. R. Co., 43 N. Y., 527; Toomey v. Turner, 24 Hun, 599, or to be inattentive to his dangerous position when on the track, whether lawfully there or not. Burns v. B. & L. R. R. Co., 101 Mass., 50; Deville v. S. P. R. R. Co., 50 Cal., 383.

_ tWe think the doctrine of the cases cited fully sustains the action of the trial court in non-suiting the plaintiff. As we have .already seen, the plaintiff had been in the defendant’s employ for many years, was thoroughly familiar with its tracks at the place of the accident, and the purpose for which they were used. He knew that engines and trains frequently passed over the track upon or near which he stood. With this knowledge, in broad •daylight, without looking or in any way attempting to ascertain whether a train or engine was approaching from the west, he stepped from his train and stood upon or so near the track as to incur the peril of the injury which he sustained. Our general knowledge and common experience leads us to the conclusion that this act was dangerous, and consequently negligent. That it ■was fraught with danger the plaintiff must have known, and, •therefore, he was guilty of negligence, unless his action was explained or justified by special circumstances. We find nothing in this case to explain or justify it. Nothing special had arisen •which required unusual attention, or which should have induced ■the plaintiff’s inattention to his own safety. Ro necessity is shown for his constant watchfulness of the movements of his brakeman in throwing the switch. The act to be performed was a simple .one, and presumably the brakeman was competent to perform it.

We are of the opinion that the evidence in this case not only •failed to show that the plaintiff was free from contributory negligence, or the existence of any cause for the accident which was consistent with the exercise of proper care and prudence by him, 'but that it established conclusively that he was- guilty of gross .and inexcusable negligence, which resulted in the injury complained of.

These considerations lead us to the conclusion that the court •properly nonsuited the plaintiff, which renders it unnecessary for us to examine the other questions presented on this appeal.

Judgment affirmed, with costs.

Hardest, P. J., and Merwest, J., concur.  