
    Anthony Kozlowski, Respondent, v. Rochester, Syracuse and Eastern Railroad Company, Appellant.
    Fourth Department,
    January 11, 1911.
    Railroad — negligence—injury to person on platform by passing train-— contributory negligence.
    Where a plaintiff who, while waiting at a shelter maintained by a trolley company on a country road, and seeing for a distance of 1,300 feet a car with a brilliant headlight approaching at a high rate of speed, maintained his position on the edge of the platform so near to the approaching car, which was running on a limited schedule, that he was either struck by it or thrown by the wind caused by its passage, he cannot recover for the injuries received.
    This, because the defendant was not negligent in running a limited car past a local station at a high rate of speed; even if the motorman had seen the plaintiff upon the platform, for he had a right to assume that he would not maintain such a dangerous position, and because the plaintiff by so doing was guilty of contributory negligence.
    Appeal by the defendant, the Rochester, Syracuse and Eastern Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 27th day of April, 1910, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 25th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ernest I. Edgcomb, for the appellant.
    
      Edward C. Edelman, for the respondent.
   Seeing, J.:

The action is for negligence. The defendant is a street-surface railroad company operating a double-track railroad by electricity from Eochester to Syracuse, a distance of eighty-one miles. The tracks are built, in the main, upon the defendant’s right of way, and both limited and local cars are in use, the former .running at a high rate of speed making very few stops.

At each highway crossing a small building called a shelter, with-a platform extending nearly to the adjacent track, had been constructed for the accommodation of passengers desiring to take its local cars. In the building was a device to be used in signaling the local cars to stop. The tracks extended in an easterly and westerly direction, and the west-bound cars ran on the northerly track. Station 17 was in the country a few feet east of the highway crossing and east of the village of Fairport, through which defendant’s tracks extended. The shelter at this station was north of the tracks and distant from the nearest rail' about twelve feet. The platform was of planks, each one foot in width, practically level with the tracks and about sixteen feet long parallel with them and -extending to within two feet seven inches of the northerly rail, and the intervening space was filled in with gravel. The overhang of the car which, it is claimed, caused the injuries to the. plaintiff was one foot eight and one-fourth inches, so that the distance between the outer line of the car and the southerly edge of the platform was ten and three-fourths inches, which distance was reduced to ten inches by reason .of the projecting journal boxes of the car. FTo tickets were sold at this station and no- one was in charge. It was' designed as a shelter for waiting passengers and to enable them to signal approaching cars. The track toward the east was straight for 1,200 feet, and an approaching car from that direction could be readily seen for that distance by a person standing on the southerly part of the platform, and still further away at the shelter.

On the afternoon of the 8th of - August, 1908, the plaintiff and a - fellow-countryman left Eochester over the defendant’s line and stopped at station 17 to visit a friend in that .vicinity. They returned to the station about eleven o’clock in the evening and waited in the shelter for the car to Rochester. They heard the whistle on a car from the east, and through the window in the shelter saw it approaching nearly 1,600 feet distant. They observed the signaling device, but did not understand its purpose. They walked out to the edge of the platform, intending to board the car. The plaintiff stood on the second plank from the track, watched the coming car and waved his hand for it to stop. It was in his view all the time and was coming rapidly. lie testified it was seventeen seconds coming the 1,200 feet, which, of course, was a mere guess. There is,' however, no other evidence as to the exact rate of speed, and it may be assumed that it was about forty-eight miles an hour. He testified : “ When I got out of the shelter I took my position about a foot from the edge of the platform. I stood on the second board from the edge of the platform. I looked in the direction of the approaching car. As I got out on the platform and stood there I saw the reflection from the car; then I saw it coming around the curve, and then saw the headlight of the car approaching, and as it came straight along to me I waved my hand for it to stop. I believed at that time that the car would stop in response to my signal. As the car got within about eight feet of me the glare of the light struck my eyes and I Avas dazed, and the wind immediately hit me. I felt as if the wind lifted me in the air. I don’t remember what happened to me.” And again on cross-examination : “ I did not have any difficulty in seeing the car. I think it Avas coming very fast. It didn’t slacken its speed a particle from the time I first saw it until it reached me. The whistle did not blow again after it blew for this stop. I did not step back when I saw this car coming toward me. I had no time. There was no one on this planking, except John and myself.” And further: “ When the car was eight feet from me the light struck me in the face ; immediately afterward I felt this sensation of being lifted off my feet. The light struck me, and immediately the car struck me; I don’t know how far the car was away from me. The car was near me when I felt the sensation of being lifted off my feet. When the light struck me the car was about eight feet away; I don’t know how far it was away when the wind struck me, but I think it must have been nearer. It was cloudy that night, because it was rather dark outdoors. It was dark. It Avas a dark night. I • don’t remember whether it was cloudy or not.”

The companion of the plaintiff corroborated him in the essentials. Neither testified precisely as to the manner in which the accident happened. Kubasiewiez, the man with the plaintiff, testified that the car did not slow down at the station, and added : “ I jumped back, and. the wind-took hold of me, and the car passed by me, and then I saw Tony lying on the ground.”

However the catastrophe occurred, the plaintiff was' seriously injured and his right leg was amputated below the knee.

The motorman on the car was sworn as a witness .on behalf of the plaintiff, and testified that the car was a limited car running as an extra from Lyons, and was without passengers at the time he passed station 17. It appears that- the people óf Fail-port were observing Old Home Week ” at this time and many people wére ' attracted to this function, and extra cars were used for their accommodation, and this was one of those cars and it was not running on schedule time, and the orders were not to stop, -except at Newark. It was a heavy car, weighing about forty-eight tons, and was fifty-two and one-lialf feet in length. The motorman testified that he did not see any one on the-platform at station 17 and did not know of the accident until he arrived at Fail-port.

While the story of the plaintiff as to the manner of the accident seems- to be incredible, yet - assuming it be truthful, it establishes no.actionable negligence on the part of the defendant.. The place was in a country district and on the defendant’s right of way. The car was intended to run rapidly and not to stop at stations in the country. If these cars are to be operated at all and in competition with cars propelled by the .use of steam a high rate of speed is necessary. A fast railroad train passing a local station is not required to slow down unless there is something to indicate to the engineer that it is prudent to do so. If two or three people are standing on the .platform, he is not to assume that they will step in front of the train or approach dangerously near it. The same rule should ' obtain in the operation of rapidly running cars on a street surface railroad. Even if the motorman saw the plaintiff and his companion, and if vigilant he should have seen them, their presence on the platform would not suggest that they were in any danger from • the car. The' plaintiff was on the second plank from the track, and more than twenty inches from 'the extreme overhang of the car.

He was looking at the. car, and the motorman would be warranted in believing lie would step back as it approached.

It was not negligent in the circumstances to run the car rapidly. (Phelps v. Erie R. R. Co., 134 App. Div. 729; Hunt v. Fitchburg R. R. Co., 22 id. 212.)

The plaintiff’s story proves that his own lack of caution contributed to his injuries. (Riddle v. Forty-second St., etc., R. Co., 173 N. Y. 327, 331; Dooley v. Union R. Co., 106 App. Div. 397; Creenan v. International R. Co., 139 id. 863; Waters v. United Traction Co., 114 id. 275 ; Matulewicz v. Metropolitan St. R Co., 107 id. 230; Garvey v. Rhode Island Co., 26 R. I. 80, 82.)

The car was in the plain view of the plaintiff for at least 1,200 feet. He knew that it was coming very rapidly and without any slackening of its speed. There was no indication that it was to stop. • His signals received no' response or recognition. He kept his position unchanged, when a step back would have placed him beyond the possibility of danger.

The judgment should be reversed. .

All concurred.

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