
    Charles Engler, Respondent, v. International Railway Company, Appellant.
    Third Department,
    May 4, 1910.
    Railroad—negligence — injury on private right of way—contributory negligence.
    Where, in an action for personal injuries, it appears that the plaintiff and a companion on a dark and rainy night signaled one of defendant’s cars at a regúlar stopping place; that the car, which was moving rapidly, ran 100 or more feet beyond the crossing before stopping; that plaintiff and his companion without ' taking any precautions ran toward the car along the track, which at this point was constructed on a private right of way, and that he was hit by the car as it was backed up, he is guilty of contributory negligence as a matter of law.
    The mere stopping of the car was not an invitation to. plaintiff to follow it, and he voluntarily placed himself in a position of peril.
    Houghton, J., dissented.'
    
      Appeal by the defendant, the International Eailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th day of Hay, 1909, upon the verdict of a jury for $650, and also-from an order entered in said clerk’s office on the same day denying tlie defendant’s motion for a new trial made upon- the minutes.
    
      Dama L. Spring, for the appellant.
    
      George H. Kennedy, for the respondent.
   Sewell, J.:

At the close of the plaintiff’s case the defendant’s counsel moved, for a nonsuit on the ground that the plaintiff had failed to prove any negligence upon the part of the defendant, ánd had failed to prove his own freedom from contributory negligence. The motion was denied by the court and at the close of the whole case the motion was renewed and again denied. ■ I think that the denial -of the motion was error for which the judgment must be reversed. '

The accident occurred about one o’clock in the morning of July 3,1907, a mile and a half or two' miles outside of the city of Buffalo, at “ Ludwig’s Stop,” where the defendant’s tracks cross a highway, and where its cars usually stop. It appears from plaintiff’s proof that, as he and a companion approached the -crossing, they saw one of the defendant’s street cars coming at a rapid speed; that they signaled to stop, and the car ran seventy-five to one hundred feet before it was stopped'; that they waited a minute or a minute and a half after the car had passed and then ran after it. The plaintiff testified that the lights of the car were on ; that “ It was a very dark, rainy night, but we could see the car as it stood down there after it stopped. Then we started and ran down the trapk towards the car, along the embankment there. The track is raised up and runs along there, along a private right of way. It is not in a street or anything of that sort.. I heard no signals given. The next thing I knew the car hit me on the top of the head and I went down the embankment.” -Coates, his companion, testified that “ The car went on past the crossing about twenty-five yards; that is my estimate of the distance. Then Engler and I started to run on the tracks, with our umbrellas up, towards the car, and the next thing I knew Engler was. struck by the car backing up, and he fell over on the right side of the track .into the ditch. I didn’t hear any signal to back up. * * * xWe ran down the tracks with our umbrellas over our heads.”

The evidence on the part of the defendant tends to show that the car ran 300 or 400 feet beyond the crossing before it stopped; that the motorman immediately gave four bells, the usual signal to back, and that the conductor repeated the signal. The motorman testified that he then gave several blasts of the whistle and started the car backward toward the crossing.

What the respondent claims as negligent is, that the motorman did not give adequate warning so as to notify the plaintiff of the approaching car, and that the conductor did not place himself at the rear of the car where he could see and protect the plaintiff and his companion as the car backed toward the crossing. It may well be doubted whetliér the evidence was sufficient to sustain a finding that the defendant was negligent in failing to appreciate that the plaintiff and his companion might be- following the car down the track, but if this be assumed it does not aid the respondent, because the undisputed facts conclusively showed the plaintiff to have been guilty of contributory negligence.

They showed that an unobstructed view of the lighted car was possible as it approached the crossing, and that the plaintiff could have seen it if he had actually looked; that lie was in a position of safety when the ear was stopped and commenced to back and that he voluntarily placed himself in a position of peril knowing what was likely to occur unless he took care of himself.

It cannot be said that the mere stopping of the car was an invitation to the plaintiff to follow it. He had no right to assume that the motorman would not do his duty and return, and that there was no danger. He knew that the defendant had a superior right of way upon its tracks beyond the crossing and it was his duty to be actively vigilant. The undisputed facts show that the plaintiff neither' looked nor listened but blindly ran after the car without taking any precaution or making any effort to avoid the danger to which he was exposed.

We are, therefore, of the opinion that the question of contributory negligence on the part- of the defendant was hot a question of fact for the jury, and that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred; Coohrane, J., in result; except Houghton, J., dissenting.

■ Judgment and order reversed and new trial granted, with Costs to appellant to abide evént, ‘ .  